Gleeson v Grimes

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 01 November 2002
• Neutral Citation: [2002] IEHC 108
• Docket Number: [2001 No. 16198 P]
• Court: High Court
• Date: 01 November 2002

[2002] IEHC 108

THE HIGH COURT

RECORD NUMBER 2001 16198P

GLEESON v. GRIMES & McQUILLAN

NIALL GLEESON AND LOUISE GLEESON

PLAINTIFFS

AND

FINAN P. GRIMES AND EUGENE MCQUILLAN

DEFENDANTS

Citations:

RSC O.56 r2

ARBITRATION ACT 1980 S5

ARBITRATION ACT 1980 S5(1)

MACCORMAC PRODUCTS LTD V MONAGHAN CO-OP LTD 1988 IR 304

CAPITAL TRUSTS INVESTMENTS LTD V RADIO DESIGN & ORS 2001 3 AER 756

MUSTILL THE LAW AND PRACTICE OF COMMERCIAL ARBITRATION IN ENGLAND 2ED 1989 474

PATTEL V PATTEL 2000 QB 551

MERKIN ARBITRATION LAW 1991 6

Synopsis:

ARBITRATION

Stay

Step in the proceedings - Two requirements for conduct to constitute step in proceedings - Whether second named defendant had taken step in the proceedings by making particular averments in affidavit - Arbitration Act, 1954, s. 5(1) - Rules of the Superior Courts, Order 56 Rule 2 (2001/161981P - Finlay Geoghegan J - 1/11/02)

Gleeson v Grimes

Facts: The second named defendant applied for an order pursuant to section 5 of the Arbitration Act, 1980 staying the proceedings so that the matter could be referred to arbitration. The plaintiffs opposed the application on the grounds that the second named defendant had taken a step in the proceedings and as a result was no longer entitled to the order sought.

The alleged step was a request made by the second named defendant to the court in the affidavit grounding the application for a stay. In the affidavit the second named defendant indicated that he was not a party to the contract. At paragraph 7 he stated that he willing to consent to court determining the issue as to whether or not he was a party to the contract if the court considered this necessary. However, he emphasised that in so consenting he was not waiving his right to a stay or taking any step in the proceedings.

At the hearing counsel for the second named defendant indicated that the second named defendant was no longer seeking to assert that he was not a party to the contract. It was submitted on behalf of the plaintiffs that the second named defendant, having sought to invoke the assistance of the court must be regarded as having taken a step in the proceedings and was now no longer entitled to a stay.

Held by Finlay Geoghegan J. in granting a stay that two requirements must be satisfied for conduct to constitute a step in the proceedings:

The conduct of the applicant must be such as to demonstrate an election to abandon his right to a stay in favour of allowing the action to proceed.

The act in question must have the effect of invoking the jurisdiction of the court.

In making the averments in paragraph 7 the second named defendant could not be said to have elected to abandon his right to a stay. In such circumstances, it was unnecessary to consider whether the statements made therein had the effect of invoking the jurisdiction of the court.

1 Ms. Justice Finlay Geoghegandelivered the 1st day of November, 2002.

2 This is an application brought by the second named defendant for an order pursuant to Order 56 rule 2 of the Rules of the Superior Courts staying these proceedings as against the second named defendant pursuant to the provisions of section 5 of the Arbitration Act, 1980.

3 Section 5(1) of the Arbitration Act provides:-

4 5. - (1) If any party to an arbitration agreement, or any person claiming through or under him, commences any proceedings in any court against any other party to such agreement, or any person claiming through or under him, in respect of any matter agreed to be referred to arbitration, any party to the proceedings may at any time after an appearance has been entered, and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay the proceedings, and the court, unless it is satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed or that there is not in fact any dispute between the parties with regard to the matter agreed to be referred, shall make an order staying the proceedings

5 The plaintiffs oppose the application upon the grounds that a step has been taken in the proceedings and hence the second named defendant is no longer entitled to the order sought. The alleged step is the request made to the Court by the second named Defendant in paragraph 7 of the affidavit grounding this application. Therein the second named Defendantstated

6 7. The works were intended to be carried out and were in fact carried out by McQ Construction Limited. Payments in respect of the works were made to McQ Construction Limited. In defending these proceedings I will be asserting that I have been wrongfully joined as a Defendant. I am willing to consent to the issue of who the contracting party was being determined at arbitration. However, if the Plaintiffs, wish the issue of whether or not I am the party with whom they...