O'Cathain v O'Cathain
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 24 May 2012 |
| Neutral Citation | [2012] IEHC 223 |
| Docket Number | [No 50MCA/2012] |
| Court | High Court |
| Date | 24 May 2012 |
BETWEEN:
[2012] IEHC 223
THE HIGH COURT
ARBITRATION LAW
Procedure
Award - Set aside - Fair procedures - Applicant leaving arbitration - Arbitration proceeding in applicant's absence - Whether sufficient information submitted by respondent to enable defence - Whether access to information frustrated - Whether arbitrator entitled to appoint expert without consent of parties - Whether arbitrator entitled to proceed in absence of applicant - Grangeford Structures Ltd (in liquidation) v SH Ltd [1990] 2 IR 351 applied - UNCITRAL Model Law, article 26 - Relief refused (2012/50MCA - Hedigan J - 24/5/2012) [2012] IEHC 223
O'Cathain v O'Cathain
Facts: The applicant had entered a partnership agreement with the respondent to set up a firm of solicitors. The applicant was the nephew of the respondent. Following a dispute regarding the partnership agreement, the respondent began legal proceedings which were then referred to an arbitrator.
During the arbitration, the applicant failed to supply his submissions or documentation as well as repeatedly claiming he could not complete his defence without further information. The applicant also sought to challenge the appointment of an accountant as part of the arbitration, and left the proceedings before their conclusion. The arbitrator made an award in the favour of the respondent, which the applicant now sought to have set aside.
Held by Hedigan J, that the applicant”s claim that he did not have access to the relevant information was not supported by the evidence, and accordingly he was in a position to complete his defence.
The appointment of the accountant by the arbitrator was clearly within his remit, having considered art 26 of the UNCITRAL Model Law on Arbitration. In regards to the applicant absenting himself from the proceedings, the arbitrator had to balance the applicant”s rights to fair procedures against the respondent”s right. As the applicant had failed to engage with the other party, the arbitrator was entitled to continue with the proceedings. Grangeford Structures Ltd v S.H Ltd [1990] 2 IR 351 considered.
The application was therefore dismissed
ARBITRATION ACT 2010 S6
RSC O.56 r3(1)(i)
GRANGEFORD STRUCTURES LTD (IN LIQUIDATION) v SH LTD 1990 2 IR 351 1990 ILRM 277 1987/6/1555
The applicant resides at 30 South Terrace, Cork. The respondent resides at "Sanzio", Beaumount Cresent, Ballintemple, Cork.
(a) An Order pursuant to section 6 of the Arbitration Act, 2010, Article 34 of the UNCITRAL Model Law, the common law and Order 56, rule 3(1) (i) of the Rules of the Superior Court (as amended) setting aside the Interim Award of Frank Nyhan, Arbitrator dated 13th January, 2012.
(b) An Order pursuant to section 6 of the Arbitration Act, 2010, Article 34(4) of the UNCITRAL Model Law, the common law and Order 56, rule 3(1) (i) remitting the said Award of Frank Nyhan, Arbitrator for his reconsideration of the dispute between the Applicant and the Respondent.
2 3.1 The applicant worked for a firm of solicitors in Cork until January, 2006, when he entered a partnership agreement with his uncle, the respondent. The partnership was formalized by a deed dated 20th April, 2007. In December, 2008 a dispute arose under the partnership agreement. Legal proceedings were commenced by the respondent which resulted in Mr. Justice Murphy referring the matter, with the consent of the parties, to arbitration by order dated 13th July, 2010. Mr Frank Nyhan was appointed arbitrator on 8th September, 2010.
3 3.2 A large amount of correspondence passed between the parties and the arbitrator. On 8th June, 2011 the applicant's solicitor wrote to the arbitrator and stated that the accounts being provided by the respondent were insufficient to complete his points of defence and counterclaim. An inspection of the accounts took place in the office of the respondent on 2nd August, 2011. The applicant's accountants were not satisfied that they had full access to the accounts on the computers in the office. A second preliminary meeting was convened on 22nd September, 2011. The arbitrator tried to get to the bottom of what the applicant actually wanted. The applicant's solicitor stated that he wanted three things (i) the journals, (ii) the accounts for the building on South Terrace and (iii) a box of miscellaneous items. All of these documents were provided. However the applicant continued to argue that he could not submit his defence and counterclaim as he did not have access to all the information which he required. On the 14th October, 2011 the arbitrator wrote to the applicants solicitor informing him he was not accepting further correspondence from either party unless it related to the pleadings or a date for hearing.
4 3.3 The applicant applied twice before the date of the hearing for an adjournment. On 21st November, 2011 and 23rd November, 2011. The application was not responded to. At the hearing on 25th November, 2011 at the arbitrator's offices the applicant was present with his solicitor and at the outset of the hearing the solicitor for the applicant again made an application to have the matter adjourned which was also refused. The applicant left during the course of the hearing complaining that he did not have sufficient information to submit his defence. The hearing proceeded in his absence.
5 3.4 An award was issued by the arbitrator on 13th January, 2012. In his award the arbitrator held as follows at paragraph 19:-
2 "19. Having carefully considered the written submissions, reviewed the documentation and heard the evidence I now make the following findings of law and of fact:-
(a) I find as a matter of law and of fact that D. Ó C and R. Ó C entered into a partnership in January 2006, the terms of the partnership agreement are set out in an agreement dated the 20th April 2007 and further that the points of interpretation set out in the Irish Language form part of that agreement.
(b) I find that as a matter of law and of fact that the partnership was dissolved on the 18th December 2008.
(c) I find as a matter of law and of fact that D Ó C and R O'C are bound by terms of the Interim High Court Settlement dated the 21st December 2009.
(d) I find that the accounts for the partnership for the years 2006, 2007 and 2008 prepared by Horgan & Barrett accountants are true and accurate.
(e) I find that the O'C practice was paid a VAT inclusive fee of €21, 661 for the sale of premises at 9 South Mall and I find that as a matter of law and of fact that R O'C is liable to account to D O'C for that fee.
(f) I cannot from the information before me determine which party is liable for the costs of the High Court Motion referred to in the Order of Mr. Justice Murphy dated the 12th July 2011 and I therefore find that D Ó C and R Ó C should each bear their own costs of that Motion.
(g) I therefore find that R O'C is liable to pay D Ó C the following sums
(i) €3,819.11 being the sum due to the ESB.
(ii) €11,016 being a contribution to the fees due to Horgan & Barrett. I consider that the other sums claimed by Horgan & Barrett are more properly attributable to the dispute between the parties.
(iii) €5,453.75 being a contribution due for rates on the premises where the practice carried on business.
(iv) €34,444 being the sum due on foot of the capital account on the dissolution of the partnership.
(v) €84,226 being the sum due in respect of Debtors due on the dissolution of the partnership.
(vi) €14,080 being 65% of the VAT inclusive fee for the sale of 9 South Mall Cork.
I therefore award D Ó C the sum of €153,038.86 together with his costs of the arbitration to include the arbitrators and experts fee."
In the within proceedings the applicant seeks to set aside this arbitral award.
2 4.1 An arbitral award may be set aside by the Court in certain circumstances. Article 34 of the UNCITRAL Model Law deals with applications for setting aside an arbitral award. It provides as follows:-
2 "34 (2) An arbitral award may be set aside by the court …only if:-
(i) a party to the arbitration agreement … was under some incapacity; …
(ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case."
Counsel for the applicant submits that the applicant was unable to present his case as he was not given access to the full and complete accounts and financial records by his partner, D Ó C which he required in order to prepare his defence The applicant's solicitor had written to the arbitrator on 3rd March, 2011 informing him that the arbitration could not proceed until such time as full accounts had been provided. By further letter dated 6th March, 2011 from the applicant's solicitor to the arbitrator this request was repeated. The applicant's solicitor wrote to the arbitrator on 19th April, 2011, 27th April, 2011 and 10th May, 2011 explaining that the required documentation had not been provided by D Ó C. The applicant's solicitor again wrote to the arbitrator by letter dated 8th June, 2011 setting out three specific categories of documents which were required for the applicant to present his case:
(ii) All trial balances for each of the 6 month periods from 06.01.2006 to 31.12.2008;
(iii) All printouts for all nominal codes from 06.01.2006 to 31.12.2008
3 4.2 Access to the...
To continue reading
Request your trial
-
Want To Arbitrate? Be Proactive
...& Company Limited (in receivership and in liquidation) -v- FCC Elliot Construction Limited [2012] EIHC 361 3. O'Cathain -v- O'Cathain [2012]IEHC 223 The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your sp......