C appealed to the Commercial Court pursuant to the Arbitration Act 1996, s.68 (challenging the award on the ground of serious irregularity), contending that the owner had not advanced such a case, and accordingly it had had no opportunity to address it.

Decision: Application refused.

Held: (1) It was well established that deciding a case on the basis of a point which had not been argued could amount to a serious irregularity. However, it was equally well established that the s.68 remedy was one of last resort. (2) It was clear that O and the arbitrator had had in mind the principle that, where work was done outside the scope of a contract and the benefit of the work was enjoyed by the party who had requested the work, there would be an implied contract that the requesting party would be liable to indemnify the other party for the additional costs it had incurred in complying with the request. (3) In those circumstances, properly understood against the background of the submissions that were actually made, there was no question of the arbitrator’s having decided the case on the basis of a point that had not been argued before him. C never addressed the point, not because they did not understand it, as it was an integral part of O’s case, but because for whatever reason they chose not to address it, perhaps because they knew full well that there was no answer to the point.