Gulliver v Brady

JurisdictionIreland
JudgeMr. Justice Geoghegan
Judgment Date19 December 2003
Neutral Citation[2003] IESC 68
Docket Number310/2003
CourtSupreme Court
Date19 December 2003
GULLIVER v. BRADY & ORS T/A MATHESON ORMSBY PRENTICE
BETWEEN/
JOHN GULLIVER
Plaintiff/Appellant

and

GEORGE BRADY, ANNE-MARIE BOHAN, BRIAN D. BUGGY, SHARON C. DALY, ANDREW B. DOYLE, TARA M. DOYLE, RODERIC ENSOR, PAUL FARRELL, TURLOUGH J. GALVIN, GARRETT P. GILL, PAUL GLENFIELD, ALAN G. GRAHAM, ROBERT HERON, JAMES HICKEY, RUTH HUNTER, MICHAEL GLYNN IRVINE, MICHAEL G. JACKSON, NEIL KEENAN, HELEN G. KELLY, DON McALEESE, PARAIC T. MADIGAN, STUART PHILIP MARGETSON, EDWARD C.G. MILLER, PATRICK J. MOLLOY, ARTHUR D.S. MORAN, JOYCE DEIRDRE MORRIS, ANDREW MUCKIAN, BRID MUNNELLY, FRANK NOWLAN, MICHAEL O'CONNOR, PAULINE O'DONOVAN, ANTHONY G. O'GRADY, ANTHONY O'REILLY, WILLIAM P.M. PRENTICE, CHRISTOPER J. QUINN, WILLIAM A. QUIRKE, GRAHAM C. RICHARDS, DONAL ROCHE, JAMES SCANLON, TIMOTHY SCANLON, PATRICK F.G. SPICER, PATRICK SWEETMAN, MICHAEL W. TYRRELL, MARK VARIAN, STANLEY G. WATSON, JOHN RYAN, ANTHONY WALSH, BERNARD DOHERTY, CATHERINE GALVIN, GREG LOCKHART AND FRANK O'NEILL PRACTISING UNDER THE NAME AND STYLE OF MATHESON ORMSBY PRENTICE
Defendants/Respondents

[2003] IESC 68

310/2003

THE SUPREME COURT

Synopsis:

ARBITRATION

Contract

Partnership - Declarations - Dispute - Stay - Whether the appellant's rights and obligations as against the respondents arose solely out of the Memorandum of Understanding and the documents incorporated therewith - Whether the dispute relating to the appellant's alleged partnership in respondents” firm is captured by the Arbitration clause (310/2003 - Supreme Court - 19/12/2003)

Gulliver v Matheson Ormsby Prentice

The appellant, who is a tax advisor and specialist claimed that he had become a full equity partner in the respondents’ Solicitors firm. The respondents dispute this claim based on a contractual document, dated 21 July, 1999 and headed up, “Memorandum of Understanding.” Paragraph one of that document indicated that it was the intention of the parties, subject to regulatory constraints to put in place a mechanism whereby the appellant will (subject to the terms and provisions of this agreement, including clause 5 and sub-clause 7.12) be admitted as a full profit sharing partner of respondents with effect from 1st January 2003. Paragraph 5 of this agreement provides that the appellant should be admitted as a full equity partner subject to the preconditions specified in sub-clauses 5.2 and 5.3. Paragraph 5, sub-clause 5.2.2 provides that “The equity partners of B shall not have passed a resolution, on which at least 75 per cent of the equity partners thereof have voted in favour, to the effect that A shall not be admitted as an equity partner to B.” A resolution to this effect was passed on 17th December, 2002. The appellant claims that the above provision was redundant at the time of this resolution. The appellant maintains that he had been made a partner and had acted as such prior to this resolution and therefore well in advance of the agreed date of commencement.

The respondents claim that the dispute relating to the appellant’s alleged partnership must be referred to arbitration under the terms of the arbitration clause, found at paragraph 7.7 of the contract. The arbitration clause provides that all disputes between the parties to the agreement, arising out of that agreement or in relation to the agreement, the Services Agreement or Letter of Administration or in relation to the termination or validity thereof shall be referred to arbitration….. The appellant maintains that that he is not bound by this arbitration clause because his alleged partnership did not arise pursuant to the terms of the Memorandum of Understanding. The respondents brought a motion to stay the appellant’s action pending a reference to arbitration. O’Sullivan J in the High Court granted a stay and the appellant now appeals from this decision.

Held by the Supreme Court (Hardiman, Geoghegan, Fennelly JJ) in granting a stay and refusing the appellant’s appeal:

1. That on the face of it, the resolution passed on 17th December, 2002 precluded the appellant from becoming a partner, with effect from 1st January, 2003 as agreed.

2. That the appellant never suggested that in relation to the alleged existing partnership new terms had been negotiated or that terms could be implied into the agreement other than the terms contained in the Memorandum of Understanding. However if this did occur, the Memorandum of Understanding forms part of the partnership agreement now alleged to exist by the appellant in so far as it is consistent with the alleged earlier creation of such partnership.

3. That in the circumstances it is difficult to hold that the arbitration clause would not apply to the dispute. However, if the arbitration clause could not be regarded as having been incorporated in any amended or substituted partnership agreement, the essential feature of the dispute in this case would still be whether the appellant’s rights and obligations as against the respondents arose solely out of the Memorandum of Understanding and the documents being incorporated therewith.

4. That the dispute relating to the appellant’s alleged partnership in the respondents’ firm is captured by the arbitration clause contained in paragraph 7.7 of the contract. The dispute is a dispute in relation to the agreement and could also be regarded as a dispute in relation to the termination or validity of the agreement.

5. That the term “in relation to this agreement” should be given a broad interpretation. Further that the term “arising out of” should also be given a wide meaning. Accordingly, the dispute in this case is a dispute arising out of the contract as well as a dispute in relation to the contract.

Law and Practice of Commercial Arbitration in England, 2nd edition by Mustill and Boyd considered.

6. That the use of the phrase “in relation to” may be sufficient to cover disputes arising under another contract relating to the contract containing the arbitration clause.

Russell on Arbitration, 22nd edition considered.

7. That there is a single dispute in this case and that is whether the...

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8 cases
  • Leo Laboratories Ltd v Crompton BV (formerly Witco B.v)
    • Ireland
    • Supreme Court
    • 12 May 2005
    ...- Continental Bank v Aeokos SA [1994] 1 WLR 588; Clare Taverns v Gill [2000] 1 IR 286 and Gulliver v Brady (Unrep, SC, 19/12/2003; [2003] IESC 68) followed - Stay granted (56/2004 - Fennelly [nem diss] Geoghegan Kearns - 12/5/2005) [2005] IESC 31 LEO LABORATORIES LTD v CROMPTON BV (ORSE WI......
  • K&J Townmore Construction Ltd v Kildare and Wicklow Education and Training Board
    • Ireland
    • High Court
    • 21 December 2018
    ...briefly to one decision of the Supreme Court in the context of the pre-2010 Act legislative regime. The case is Gulliver v. Brady & ors [2003] IESC 68 (‘ Gulliver’). In that case, the Supreme Court was required to interpret an arbitration clause contained in a memorandum of understanding b......
  • Ocean Point Development Company Ltd ((in Receivership)) v Patterson Bannon Architects Ltd
    • Ireland
    • High Court
    • 10 May 2019
    ...relies on case law on the interpretation of the arbitration agreements or arbitration clauses including Gulliver v. Brady and Others [2003] IESC 68 (‘ Gulliver’), O'Meara v. The Commissioners of Public Works in Ireland and Others [2012] IEHC 317 (‘ O'Meara’), BAM and Townmore in support o......
  • Re Lisa Parkin (a debtor)
    • Ireland
    • High Court
    • 4 February 2019
    ...to’ appear, on their face, to be capable of wide application. That was the view of the Supreme Court in an arbitration context in Gulliver v Brady [2003] IESC 68. Murphy J took a similar view of the somewhat similar words ‘ in connection with’ in the context of s. 60 of the Companies Act 1......
  • Request a trial to view additional results

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