This was an appeal by Mowlem against an arbitrator’s award. Mowlem was main contractor on a development of retail premises and had subcontracted the earthworks and associated design and construction of retaining walls to PHI. PHI’s work essentially entailed construction of terracing to form suitably level areas which could when surfaced be used for customer car parking at the development.

Mowlem supplied free issue fill material to PHI for incorporation into the earthworks. Although this free issue fill met the requirements of the subcontract it was found unsuitable for PHI’s works because it could not be compacted properly. Mowlem supplied alternate material for filling purposes (“the 6F2 material”). The incorporation of the 6F2 material meant that less free issue fill material was needed and so Mowlem was required to remove from site the surplus material that was not used in the earthworks.

As a result of previous applications to the court it was determined that there was no implied term in the subcontract that the free issue fill supplied by Mowlem free of charge should be fit for incorporation into the earthworks. Further, at arbitration the arbitrator found that: PHI had not agreed to pay Mowlem for the supply of the 6F2 material; that no term could be implied that PHI would pay for the material; and that Mowlem was not entitled to recover payment on a restitutionary basis. Accordingly Mowlem’s claim for payment of the 6F2 material failed for lack of legal entitlement.

As regards Mowlem’s claim for the costs of carting away from site the surplus free issue fill that was not used in the earthworks, the arbitrator found that Mowlem had no legal basis for such claim.

Mowlem contended that the arbitrator had erred in law in finding that there was no legal entitlement to be paid for the 6F2 material and that the arbitrator had further erred in law in finding that Mowlem had not established a legal basis to be paid for the costs of carting away the excess free issue fill.