Corrigan v Durkan

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 16 December 2010
• Neutral Citation: [2010] IEHC 477
• Docket Number: 59 MCA/2010
• Date: 16 December 2010
• Court: High Court

[2010] IEHC 477

THE HIGH COURT

59 MCA/2010

118 MCA/2010

Corrigan v Durkan

IN THE MATTER OF THE ARBITRATION ACTS 1954 /1998

AND

IN THE MATTER OF AN ARBITRATION

BETWEEN

PATRICK CORRIGAN

APPLICANT

AND

MICHAEL THOMAS DURKAN

AND

PATRICK DURKAN

RESPONDENTS

ARBITRATION ACT 1954 S36

RSC O. 56 r4(G)

RSC O. 56 r4(H)

ARBITRATION ACT 1954 S41

ARBITRATION ACT 1980 S7

ARBITRATION ACT 1980 S16

RSC O. 56 r4

ARBITRATION ACT 1954 S36(1)

ARBITRATION ACT 1954 S36(2)

ARBITRATION ACT 1954 S37

ARBITRATION ACT 1954 S38(1)

ARBITRATION ACT 1954 S38(2)

ARBITRATION ACT 1954 S38

GALWAY CITY COUNCIL v SAMUEL KINGSTON CONSTRUCTION LTD & HAWKER 2010 2 ILRM 348 2010 IESC 18

KEENAN v SHIELD INSURANCE CO LTD 1988 IR 89 1988/2/325

GALWAY CITY COUNCIL v SAMUEL KINGSTON CONSTRUCTION LTD & HAWKER UNREP MCMAHON 17.10.2008 2008/26/5603 2008 IEHC 429

DOWLING-HUSSEY & DUNNE ARBITRATION LAW 2008 PARA 8.20

ST JOHN SUTTON & ORS RUSSELL ON ARBITRATION 23ED 2007 PARA 5.090

LONDON EXPORT CORP LTD v JUBILEE COFFEE ROASTING CO LTD 1958 1 WLR 271 1958 1 AER 494 1958 1 LLOYDS 197

KELCAR DEVELOPMENTS LTD v MF IRISH GOLF DESIGN LTD 2008 1 IR 407 2007/32/6548 2007 IEHC 468

BORD NA MONA v JOHN SISK & SON LTD & ORS UNREP BLAYNEY 31.5.1990 1990/1/104

CITLAND LTD v KANCHAN OIL INDUSTRIES PVT LTD 1980 2 LLOYDS 274

MUSTILL & BOYD THE LAW & PRACTICE OF COMMERCIAL ARBITRATION IN ENGLAND 2ED 1989

ARBITRATION

Award

Remittal - Extension of time - Enforcement of award - Principles on which award can be challenged - Grounds upon which court entitled to intervene - Whether serious, substantial or fundamental error or misconduct - Galway City Council v Samuel Kingston Construction Ltd [2010] IESC 18, [2010] 2 ILRM 348; Keenan v Shield Insurance Company Ltd [1988] IR 89; Church and General Insurance Co v Connolly (Unrep, Costello J, 7/5/1981); Galway City Council v Samuel Kingston Construction Ltd [2008] IEHC 429, (Unrep, McMahon J, 17/10/2008); London Export Corporation Ltd v Jubilee Coffee Roasting Co Ltd [1958] 1 WLR 661, [1958] 1 All ER 494, [1958] 1 All ER 494; Williams v Wallis [1914] 2 KB 478; Portsmouth Arms Hotel Ltd v Enniscorthy UDC (Unrep, O'Hanlon J, 14/10/1994); Tobin & Twomey Services Ltd v Kerry Foods Ltd [1996] 2 ILRM 1; McCarrick v Gaiety (Sligo) Ltd [2002] 1 ILRM 55; McStay v Assicurazioni Generali SPA [1991] 2 ILRM 237; Limerick City Council v Uniform Construction Ltd [2005] IEHC 347, [2007] 1 IR 30 and McCarthy v Keane [2004] IESC 104, [2004] 3 IR 617 considered - Extension of time - Time limit - Six weeks to appeal - Factors to be considered - Kelcar Developments Ltd v MF Irish Golf Design Limited [2007] IEHC 468 , [2008] 1 IR 407 applied - Bord Na Mona v John Sisk and Son Ltd (Unrep, Blayney J, 31/5/1990) and Citland Limited v Kanchan Oil Industries PVT Limited [1980] 2 Lloyds Rep 274 considered - Arbitration Act 1954 (No 26), ss 36, 37(1), 38(1) and 41 - Arbitration Act 1980 (No 7), ss 7 and 16 - Rules of the Superior Courts 1986 (SI 15/1886), O 56, r 4(g) and (h) - Liberty to enforce award of arbitrator granted (2010/59MCA & 2010/118MCA - Birmingham J - 16/12/2010) [2010] IEHC 477

Corrigan v Durkan

Facts There were three motions before the court arising out of an arbitration hearing/award which concerned disputes in respect of a licence agreement between the parties. Pursuant to that agreement the applicant had agreed to pay to the respondents the sum of €3million in respect of certain lands. In an award dated 17 December 2009 the arbitrator directed the applicant to pay to the respondent the sum of €3million. Following a demand for payment of same, the solicitors on behalf of the applicant stated that they were considering the avenues of appeal open to them under the Arbitration Acts. Subsequently, the applicant issued two notice of motion seeking respectively an order pursuant to s. 36 of the Arbitration Act 1954 remitting the award to reconsideration of the arbitrator and an order pursuant to Order 56, rule 4 of the Rules of the Superior Courts extending the time within which an application can be made to remit or set aside the award of the arbitrator. The respondent sought by way of notice of motion an order pursuant to Order 56, rule 4(g) and (h) of the R.S.C. and s. 41 of the Arbitration Act 1954 and ss. 7 and 16 of the Arbitration Act 1980 granting liberty to enforce the award of the arbitrator. The applicant criticised the manner in which the arbitrator dealt with the evidence of a particular witness and alleged that the approach of the arbitrator was so flawed as to amount to misconduct in the sense that that term is used in the arbitration code. The applicant also submitted that there was a failure by the arbitrator to deal with all of the issues that were in dispute between the parties and in particular whether the applicant was required to pay the sum of €3million in the absence of planning permission for the lands the subject of the licence agreement. The applicant did not offer any explanation as to why the notice of motion was not brought within the prescribed time.

Held by Birmingham J. in dismissing the applicant's motions and allowing the respondent's motion: That the strength of the case sought to be made by the applicant in respect of his criticisms of the arbitrator was a factor that was relevant to the question whether time should be extended. The arbitrator did not fall into error or engage in misconduct in the way he dealt with the evidence and he did not fail to deal with all of the issues in dispute. The application to remit by the applicant was in reality an attempt to appeal the award. Furthermore, the applicant's notice of motion was not brought within six weeks of the award being made and published and given that it had been determined there was no basis in fact for seeking to remit the award to the arbitrator or set-aside the award it would have been illogical to extend the time for the making of that application.

Reporter: L. O'S

1 JUDGMENT of Mr. Justice Birmingham delivered the 16th day of Dec. 2010.

2 1. This matter comes before the court by way of three notices of motion, two of which have been brought by Mr. Patrick Corrigan and one by Mr. Michael Thomas Durkan and Mr. Patrick Durkan. In the course of this judgment I will refer to Mr. Corrigan as the applicant and to Mr. Michael Thomas Durkan and Mr. Patrick Durkan as the respondents.

3 2. In relation to the notices of motion the first in time is a motion brought by the applicant dated the 26 ^th February 2010 with a return date of the 20 ^th December 2010 seeking an order pursuant to s. 36 of the Arbitration Act 1954 remitting the award dated 17 ^th December 2009 and recited as having been received by the applicant on the 22 ^nd January 2010 to the reconsideration of the arbitrator and, in particular, the issue of the proper construction of Clause 4.1 of a licence agreement dated 21 ^st December 2006 made between the parties. Also sought is further or other relief and an order for costs. The second notice of motion in time was brought by the respondents and is dated the 14 ^th April 2010. It seeks an order pursuant to O. 56, r. 4(g) and (h) of the Superior Court Rules and s. 41 of the Arbitration Act 1954 and ss. 7 and 16 of the Arbitration Act 1980 giving liberty to enforce the award of the arbitrator dated the 17 ^th December 2009. Orders are also sought in relation to interest, for other or other relief and for costs.

4 3. The third motion in time is dated the 28 ^th June 2010 and was brought on behalf of the applicant. It seeks an order pursuant to O. 56, r. 4 of the Rules of the Superior Courts extending the time within which an application can be made to remit or set-aside the award of the arbitrator. The award is stated to be dated the 17 ^th December 2009 and to have been received by the applicant on 22 ^nd January 2010. Further or other orders and an order providing for costs are also sought.

5 4. It will be noted that while the motion dated 28 ^th June 2010, the motion seeking an extension of time, refers to an application to remit or set-aside the award of the arbitrator, the substantive notice of motion of 26 ^th February 2010 makes no reference to setting aside the award of the arbitrator and the specific relief sought is an order remitting the matter to the arbitrator.

6 5. The background to these motions coming before the court is that an arbitration was conducted by Mr. Patrick O'Connor, solicitor, he having been appointed to that role by the President of the Law Society. The disputes and differences that were submitted to arbitration arose out of a licence agreement dated 21 ^st December 2006. Pursuant to the licence agreement the applicant, Mr. Corrigan had agreed to pay to the respondents the sum of €3m in respect of lands situated in the town of Louisburgh, County Mayo. The arbitrator in his award recites that the agreement was one whereby the respondents, Messrs. Durkan agreed to sell approximately 8 acres of land in Louisburgh. In the body of the award he refers to the agreement between the parties as a sale/purchase agreement drafted in the manner that it was so as to be tax efficient for both parties. In an award dated 17 ^th December 2009 the arbitrator directed the applicant in the present proceedings Mr. Corrigan to pay to the respondents the sum of €3m.

7 6. By letter dated the 17 ^th December 2009 to the solicitors for both parties, the arbitrator informed them that he had prepared and published his award and stated that he would be happy to release his award on payment of his fees. By letter dated the 20 ^th January 2010 the arbitrator furnished both parties to the arbitration with a copy of his award.

8 7. On the 5 ^th February 2010 the solicitors for the respondents in the present proceedings sought proposals for the payment of the €3m and...