G L C Construction Ltd v Laois County Council

JurisdictionIreland
JudgeMiss Justice Laffoy
Judgment Date03 March 2005
Neutral Citation[2005] IEHC 53
Date03 March 2005
CourtHigh Court
Docket NumberNo. 293 SP/2004
GLC CONSTRUCTION LTD v LAOIS CO COUNCIL
IN THE MATTER OF THE ARBITRATION ACTS, 1954 TO 1998
AND IN THE MATTER OF AN ARBITRATION AWARD OF
KEVIN BRADY, ARCHITECT, DATED 4TH JUNE, 2004
BETWEEN/
G.L.C. CONSTRUCTION LIMITED
PLAINTIFF

AND

THE COUNTY COUNCIL OF THE COUNTY OF LAOIS
DEFENDANT

[2005] IEHC 53

No. 293 SP/2004

THE HIGH COURT

CRIMINAL LAW

delay

Trial - Summary offence - Delay ensuing from agreed adjournments - Whether applicant prejudiced by delay - Whether application for judicial review premature - Whether exceptional circumstances permitting bringing application for judicial review mid trial - Mellett v DPP (Unrep, SC, 26/4/2002) considered - Relief refused (2004/631JR - Macken J - 03/03/2005) [2005] IEHC 54 Kiernan v DPP

ARBITRATION ACT 1954 S36(1)

KEENAN v SHIELD INSURANCE CO LTD 1988 IR 89

TOBIN & TWOMEY SERVICES LTD v KERRY FOODS LTD 1996 2 ILRM 1

PORTSMOUTH ARMS HOTEL LTD v ENNISCORTHY UDC UNREP HIGH 14.10.1994 1995/4/1501

ENGLISH ARBITRATION ACT 1950

MCCARRICK v GAIETY (SLIGO) LTD 2001 2 IR 266 2002 1 ILRM 55

Miss Justice Laffoy
1

This is an application by the plaintiff for an order remitting the arbitrator's award mentioned in the title hereof to the arbitrator for formal adjudication of the dispute between the plaintiff and the defendant.

2

The application is made against the following background:

3

••By an agreement dated 4th April, 1984 (the Agreement) the defendant employed the plaintiff to construct 31 houses and 2 shops at Knockmay, Portlaoise, County Laois.

4

••Approximately 12 months later the defendant, on the ground that the plaintiff was in default, determined the Agreement and employed another builder to complete the works. In recording that the Agreement was determined, I mean to convey that the plaintiff's involvement on site came to an end, without giving rise to any implication as to the status in law of that circumstance or its consequences.

5

••At the time of the determination of the Agreement plant and equipment the property of the plaintiff was on the site. The plaintiff was excluded from the site and never recovered possession of the plant and equipment.

6

••It was provided in the Agreement that any dispute or difference between the parties should be referred to the arbitration and final decision of such person as the parties might agree to appoint as arbitrator or, failing agreement, as might be appointed on the request of either party by the President for the time being of the Royal Institute of the Architects of Ireland.

7

••Some 16 years after the determination of the Agreement, in mid-2001, the President appointed Kevin Brady (the Arbitrator) to act as arbitrator in relation to the dispute which had arisen between the plaintiff and the defendant in relation to the Agreement. The Arbitrator accepted the appointment.

8

••Apart from the arbitration clause in the Agreement, which provided that every reference should be deemed to be a submission to arbitration within the meaning of the Arbitration Act,1954 (the Act of 1954) or any Act amending the same, the only document which appears to have governed the submission to the Arbitrator was a document signed on behalf of the parties, and, in particular, on behalf of the plaintiff on 29th August, 2001, which has been described as a "submission to arbitration". This document, in which the parties referred their disputes or differences arising out of or in connection with the Agreement to the Arbitrator for his determination, was primarily concerned with the fees, costs and expenses of the arbitrator in connection with the arbitration.

9

••Following a preliminary meeting on 10th October, 2001 pleadings were exchanged between the parties. The plaintiff's claim for damages for alleged breach of contract encompassed not only the claim in respect of plant and equipment which the plaintiff did not recover in April, 1985 but also a host of other claims, for example, in relation to retention monies withheld by the defendant, alleged under-valuation of works for the purposes of interim certificates and alleged under-pricing of variations, to mention but a few. The defendant counterclaimed against the plaintiff for damages for alleged breach of contract by the plaintiff of the Agreement.

10

••The hearing commenced on 15th December, 2003 and lasted for three days. It was resumed on 22nd January, 2004. Thereafter closing submissions were received by the Arbitrator from the plaintiff and the defendant.

11

••The Arbitrator issued his award on 4th June, 2004.

12

The award was headed as "Final Award". After reciting the Agreement, his appointment, and the procedure followed, the Arbitrator went on to recite the following findings made by him:

"Having read the documents and heard the evidence and read the submissions I find there was a valid contract under seal and that the claim was not statute barred. I also find that the employment of the [plaintiff] was properly terminated for failing to proceed with the works with reasonable diligence. I further find that the extent of the damage suffered by the [defendant] cannot at this stage, some twenty years after the event, be verified and that the [defendant] although entitled to claim same and to claim liquidated damages for delay in completion never pursued the same. I further find that plant which the [plaintiff] owned was taken into the possession of the [defendant] and not returned but that the value of the same is impossible now to determine and would in any event be set off against losses incurred by the [defendant]."

13

The Arbitrator then went on to make his award for the reasons previously recited which, insofar as is relevant for present purposes, was in the following terms:

14

2 "1. The [plaintiff ] is not entitled to receive any monies from the [defendant] not [nor?] is the [defendant] entitled to claim any monies from the [plaintiff].

15

2. The [plaintiff] shall pay his own costs and the [defendant's] costs in relation to the reference to date, such costs if not agreed to be taxed by myself."

16

Section 36(1) of the Act of 1954 provides as follows:

"In all cases of reference to arbitration, the court may from time to time...

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