Coen v Doyle
| Jurisdiction | Ireland |
| Judge | Mr. Justice David Barniville |
| Judgment Date | 25 March 2021 |
| Neutral Citation | [2021] IEHC 244 |
| Docket Number | [2020 No. 4748 P.] |
| Court | High Court |
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[2021] IEHC 244
David Barniville
[2020 No. 4748 P.]
THE HIGH COURT
This is my judgment on an application by the first, second and third named defendants, Mark Doyle (“Mr. Doyle”), Mark Doyle Building Contractors Ltd (the “Company”) and Ballinagam Upper Consulting Ltd trading as Mark Doyle Building Contractors (the “New Company”)(together, the “applicants”), for an order under Article 8(1) of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”), which has force of law in the State by virtue of s. 6 of the Arbitration Act, 2020 (the “2020 Act”), referring the dispute between the plaintiffs and the Company, which is the subject of these proceedings, to arbitration and staying the proceedings consequent upon such referral. In their notice of motion, the applicants asserted that an arbitration agreement was entered into between the plaintiffs and the Company “in or around April 9, 2016”.
While the applicants also sought an order pursuant to the inherent jurisdiction of the court staying the proceedings in order to allow all disputes between the parties to be referred to (non-binding) conciliation and then arbitration pursuant to the alleged agreement entered into between the plaintiffs and the Company “in or around April 9, 2016”, the applicants' counsel indicated at the outset of the hearing that the applicants were not pursuing that relief.
I was also informed at the outset of the hearing that, following an intervention made by the court on a previous occasion on which the applicants' motion was before the court for directions, all of the parties (and not just the parties to this application) have agreed to mediate the disputes the subject of the proceedings and arrangements are at an advanced stage for the appointment of a mediator. That was very welcome news, as disputes such as those which have arisen between the various parties to these proceedings would seem to me to be ideally suited to mediation as, even if the applicants were to succeed in this application, unless there is further agreement between the parties, the issues between some of the parties might have to be determined at arbitration and the issues between some of the other parties might have to be determined in the court proceedings. Ideally, that scenario should be avoided, if at all possible.
Despite the parties' agreement to go to mediation, the applicants and the plaintiffs/respondents to the application wanted the court to proceed to hear and determine the applicants' Article 8(1) application so that, in the event that the mediation were not successful, the plaintiffs and the Company would have clarity as to the forum in which the issues between them would be determined. On that basis, I agreed to hear and determine the Article 8(1) application.
The plaintiffs opposed the application and contended that there was no arbitration agreement between the plaintiffs and the Company and that, therefore, there was no basis for the court to stay the proceedings and to refer the plaintiffs and the Company to arbitration in respect of the issues between them.
The fourth named defendant, Michael Browne, trading as BBA Architecture (the “Architect”), was served with the motion papers by the applicants' solicitors. The Architect put in a written submission essentially taking a neutral position on the application but indicating that he would be prepared to participate in any arbitration in the event that the court took the view that a valid arbitration agreement existed between the plaintiffs and the Company. Counsel for the Architect appeared at the hearing and reiterated that position. It should be noted that the Architect did not bring his own Article 8(1) application and did not swear any affidavit in support of the applicants' application. Any arbitration between the plaintiffs and the Architect could, of course, only take place with the plaintiffs' agreement.
The plaintiffs wished to carry out certain construction works to their home in Cabinteely, Dublin 18 (the “property”). They obtained planning permission to subdivide the property into two semi-detached dwellings in October, 2015. They initially engaged with an architect in late 2015/early 2016 and, on the recommendation of that architect, met with Mr. Doyle in January, 2016. There is a dispute between the parties as to the precise contractual relationship which developed between the parties thereafter. The plaintiffs contended that Mr. Doyle and the Company were retained by them to carry out the construction works on the basis of a design and build project in which Mr. Doyle and the Company would engage the Architect. The plaintiffs maintained that the terms of the agreement between them and Mr. Doyle and the Company were set out by Mr. Doyle and the Company on 6 th May, 2016 and that the works proceeded thereafter on that basis. There was no signed contract. The plaintiffs claim that there were defects in the works and allege that those defects were caused as a result of a breach of contract, breach of a duty of care and misrepresentation on the part of Mr. Doyle and the Company. They also allege that the Architect was in breach of contract, negligent and guilty of misrepresentation in a number of respects. Among other things, the plaintiffs claim that the Architect failed to ensure that a written contract existed between the parties and, in particular, between the plaintiffs and Mr. Doyle and the Company. The plaintiffs also seek to hold the New Company liable in respect of the alleged defects in circumstances where they allege that assets were transferred from the Company to the New Company (which was incorporated in June, 2018, long after the services of the Company were dispensed with by the plaintiff in August, 2017). The plaintiffs have sought to do so on the basis that they contend that the businesses of the Company and the New Company should be treated as a single entity.
Mr. Doyle and the Company, who are two of the three applicants in the Article 8(1) application along with the New Company, asserted that the Company (and not Mr Doyle and the Company, as the plaintiffs have alleged) contracted with the plaintiffs on the basis of the RIAI “Blue Form” contract terms. They contended that it was the custom and practice of the Company, and generally in the construction industry, that works of the type to be carried out for the plaintiffs would be carried out on the basis of those contractual terms and that that was not for negotiation between the parties. The applicants relied on clause 38(b) of the RIAI “Blue Form” as constituting an arbitration agreement between the plaintiffs and the Company and brought the Article 8(1) application on the basis of that agreement.
The plaintiffs maintained that, while Mr. Doyle did mention the RIAI “Blue Form” in a telephone conversation on 8 th April, 2016, they made clear in subsequent written communications that they did not agree to contract on those terms and that those terms were not appropriate having regard to the design and build nature of the project and the inclusion of a bill of quantities as part of the documentation provided by Mr. Doyle/the Company.
That is a very brief description of the dispute between the parties but it should suffice for the purposes of my task on this application. I should stress that I am not making any finding in this judgment on the issue as to whether the plaintiffs contracted with Mr. Doyle and the Company, as the plaintiffs have claimed, or with the Company only, as the applicants have claimed. That is an issue which might have to be determined in the appropriate forum, in the event that the disputes between the parties are not resolved at mediation.
The applicants seek an order under Article 8(1) of the Model Law referring the plaintiffs and the Company to arbitration in respect of the disputes between them in the proceedings and staying the proceedings. The Model Law has force of law in the State by virtue of s. 6 of the 2010 Act.
Article 8(1) of the Model Law provides as follows:-
“A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.”
The approach which the court is required to take in dealing with an application under Article 8(1) is well established and there was no dispute between the parties on what that approach involves. I summarised the approach in a number of cases, including most recently, in Narooma Ltd v. Health Service Executive [2020] IEHC 315 (“ Narooma”). The approach was previously outlined by me in Ocean Point Development Company Ltd (In Receivership) v. Patterson Bannon Architects Ltd & ors [2019] IEHC 311 (“ Ocean Point”). At para. 26 of the judgment in that case, I summarised the approach as follows:-
“In order for the provisions of Article 8(1) of the Model Law to be engaged, various requirements must be satisfied. First, an action must have been brought before the court in respect of a dispute between the parties. Second, the action must concern a ‘matter which is the subject of an arbitration agreement’. Third, one of the parties must request the reference to arbitration ‘not later than when submitting his first statement on the substance of...
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Coen and Another v Doyle and Others
...was refused for the reasons set out in a judgment delivered by the High Court (Barniville J.) on 25 March 2021, Coen v. Doyle [2021] IEHC 244. This earlier judgment is relevant insofar as it held that there is no written agreement between the parties. The earlier judgment expressly left ove......