O'Flynn v an Bord Gáis Éireann

• Jurisdiction: Ireland
• Judge: Finlay P.
• Judgment Date: 25 January 1982
• Neutral Citation: 1982 WJSC-HC 2521
• Court: High Court
• Docket Number: 969P./1980
• Date: 25 January 1982

1982 WJSC-HC 2521

THE HIGH COURT

969P./1980

O'FLYNN v. BORD GAIS EIREANN

MARTIN O'FLYNN

Plaintiff

and

AN BORD GAIS EIREANN

Defendant

1 Ruling -Judgment delivered the 25th day of January 1982Finlay P.

Finlay P.

2 This is an application by the Defendant pursuant to the provisions of Section 5 of the Arbitration Act 1980to stay the proceedings on the grounds that the subject matter of the claim is a matter agreed to be referred to arbitration. The application is opposed by the Plaintiff on the sole ground that the Defendant has taken a step in the proceedings after the appearance was entered and is therefore not entitled to the provisions of Section 5 of the Act. The Plaintiff does not dispute that the subject matter of the claim is a matter which it has been agreed should be referred to arbitration.

3 The step relied upon was that on the service of a Notice of Motion for judgment by the Plaintiff, theSolicitors for the Defendant wrote to the solicitors for the Plaintiff in the following terms

"We refer to the Notice of Motion returnable for the 9th of November served on us in the above matter. We have experienced some delay in drafting particulars and defence in this matter as our Counsel, Mr. A. J. Murphy, has been indisposed for some time. Please note that at the hearing of the motion we will be applying for 21 days within which to lodge our defence. We are prepared to pay the cost of the motion, could you please let us know if you will consent?".

4 I was informed by Counsel that after the writing of that letter, an agreement was made between the parties whereby the motion for judgment would be struck out and the time requested should be allowed as an extended time for the filing of the defence.

5 Counsel on behalf of the Plaintiff relied on the case of Ford'sHotel Company .v. Bartlett 1896 AppealCases 1 which was a decision of the House of Lords in which with regard to Section 4 of the Arbitration Act, 1889 which in respect to this precise point is identical to the provisions of the Act of 1980 which I have quoted. It was held that a Defendant having unsuccessfully sought by letter a further extension of time for the filing of a defence took out a summons at chambers, for one month's further time to deliver the defence and had an Order made by the Master giving them 14 days further time, had taken a step within the meaning of the Section after appearance which debarred the Defendant from staying the...