Mr and Mrs Gort-Barten (Gort-Barten) entered into a contract with MA Cherrington Ltd (MAC) on 24 November 2005 (the contract). Pursuant to the contract, MAC was to construct a building for Gort-Barten as described in the “plans and specifications” for the sum of £1,999,999. In early 2006 the parties each contended that the other party had repudiated the contract and that the contract was terminated by the acceptance of that repudiation.

There was no separate provision in the contract dealing with the question of which party was to carry out the detailed design but there were some express provisions dealing with certain specific areas. Pursuant to the contract, MAC had the obligation to carry out the necessary structural or other design to complete the building works.

The parties agreed to arbitrate the issue of repudiation. MAC alleged that a number of terms should be implied into the contract. The arbitrator held that there were implied terms that detailed design would be a matter for Gort-Barten, that Gort-Barten would not hinder or prevent MAC from performing its contractual obligations, that Gort-Barten would do everything reasonably necessary to cooperate with MAC in providing the detailed design and that Gort-Barten would provide or arrange for the provision to MAC of such full and correct information as was or ought reasonably to have been known by the claimant to be required by MAC and in such manner and at such times as was reasonably necessary to enable MAC to fulfil its obligations in terms of the contract. Gort-Barten was given leave to appeal these findings under Section 69 of the Arbitration Act 1996.

Which party was obliged to carry out the element of detailed design that consisted of particularising an existing obligation under the plans and specifications attached to the contract?