Horan v Quilter
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hardiman,Denham J. |
| Judgment Date | 01 March 2004 |
| Neutral Citation | [2004] IESC 16 |
| Date | 01 March 2004 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 202 of 2001] |
[2004] IESC 16
THE SUPREME COURT
Denham J.
Murray J.
Hardiman J.
AND
Citations:
RSC O.56 r4(F)
ARBITRATION ACT 1954 S41
COURTS ACT 1981 S22
BEST V WELLCOME 1992 ILRM 609
O'SULLIVAN V DWYER (NO 2) 1973 IR 81
BEST V WELLCOME (NO 2) 1995 2 IR 393 1995 1 ILRM 554 1995/1/228
ARBITRATION ACT 1954 S34
DEBTORS (IRL) ACT 1840 S26
ARBITRATION (INTERNATIONAL COMMERCIAL) ACT 1998 S17
ARBITRATION ACT 1965 S29
COOKE V WALSH 1989 ILRM 322
HICKEY V NORWICH UNION FIRE INSURANCE SOCIETY LTD EX-TEMP MURPHY 23.10.87
CLARKE V CMSR OF AN GARDA SIOCHANA 2002 1 IR 207 2002 1 ILRM 450 2001/3/735
STROUD STROUD'S JUDICIAL DICTIONARY OF WORDS & PHRASES 6ED 2000
JOULE V TAYLOR 7 EX 58
PRUESSING V ING 4 b & ALD 204
LONDON CHATHAM & DOVER RAILWAY CO V SOUTH EASTERN RAILWAY CO 1893 AC 429
STEWART ARBITRATION COMMENTARY & SOURCES 2003 92
DEBTORS (IRL) ACT 1840 S27
JUDGMENTS ACT 1938
FISHER V DUDDING 1841 9 DOWL 872
BOSWELL V COAKS 1887 57 LJ CH 101
RSC O.41 r6
NEWTON V GRAND JUNCTION RAILWAY CO 16 M&W 139
HUNT V DOUGLAS (ROOFING) LTD 1990 1 AC 398
K V K 1977 FAM 39
ERVEN WARNINK BV V TOWNEND 1982 3 AER 312
BORTHWICK V ELDERSLIE STEAMSHIP CO LTD 1905 2 KB 516
Synopsis:
ARBITRATION
Interest
Whether interest on the arbitrators award should run from the date of the award or from the date of the High Court judgment enforcing the award -Courts Act, 1981 - Arbitration Act, 1954 (202/2001 - Supreme Court - 1/3/2004) - [2004] 1 IR 431 - [2004] 2 ILRM 106
Horan v Quilter
Facts: The plaintiff and the defendant, both of whom are veterinary surgeons entered into a partnership in 1989. Subsequently, difficulties arose between them as to the affairs of the partnership and they referred those differences to arbitration. The arbitrator made two interim awards before making his final award on 26 November, 1996. Both interim awards expressly reserved for a future award the question of costs. In the final award costs were awarded to the plaintiff. The High Court, on 2 July, 2001 granted the plaintiff liberty to enforce the arbitrator's award in the same manner as a judgment or order to the same effect. It was further ordered that the plaintiff recover against the defendant the sum of £30,331.65 (being the amount of the plaintiff's Bill of Costs) and the costs of the proceedings when taxed and ascertained. The plaintiff applied for interest on the Bill of Costs. The High Court judge refused to grant interest on the arbitrator's award. However he allowed interest to accrue from the date of his judgment. The plaintiff appealed against that order of the High Court. Counsel on behalf of the plaintiff in written submissions submitted that an arbitrator's award of costs should carry statutory (Courts Act) interest as and from the date of the award in the same way as an award of costs in either High Court or Supreme Court proceedings carries statutory interest as and from the date of judgment and not from the date of the ascertaining of the amount of such costs. The plaintiff contended that the term 'sum' contained within section 34 of the Arbitration Act, 1954 includes a sum which is unquantified at the time of the award, but quantified later. The defendant on the other hand maintained that the award in the case did not refer to any 'sum' because that term refers exclusively to a quantified sum, a specific sum of money.
Held by the Supreme Court (Denham, Murray, Hardiman JJ) in allowing the appeal: 1. That given its natural and ordinary meaning, the word 'sum' where it occurs in section 34 of the Arbitration Act, 1954 is not confined to a specified sum but is capable of referring to a sum (as yet) unspecified.
2. That although the term 'award' is not defined in the Arbitration Act, 1954, it has a clear meaning and refers to the decision of the arbitrator.
3. That in light of the construction of the 1954 Act, the words 'sum' and 'term' have a plain meaning. It means that money directed to be paid by a decision of an arbitrator shall, unless the decision otherwise directs, carry interest as from the date of the decision and at the same rate as a judgment debt. This construction of section 34 would also be consistent with the principle in the case law on interest payable on costs in court decisions.
4. That the fact that the arbitration award requires to be enforced by order of the Court cannot prevent interest thereon running from the date of the award to be enforced.
That the High Court erred in not including interest from the date of the award and in offering no reasons for departing from the usual rule.
Reporter: L. O'S.
1st day of March,2004by Denham J.
This is an appeal by Tadgh Horan, the plaintiff/appellant, hereinafter referred to as the plaintiff, from an order of the High Court (O'Higgins J.) delivered on the 2 nd July, 2001 and perfected on the11 th July, 2001. Thomas Quilter, the defendant/respondent, is hereinafter referred to as the defendant.
There is a single issue on this appeal and it is as to the date from which interest is payable on the taxed costs of the arbitration.
The plaintiff and the defendant commenced a partnership to practise veterinary surgery in or about 1989. Difficulties arose in the partnership in or about 1990 and by agreement Mr. Joseph Dundon was appointed as arbitrator to determine the disputes. Thearbitration progressed in the years from 1992 to 1996. An interim award was made in 1992 and in 1993, and the final award was made in 1996. Clause 5 of the final award stated:
"I award the applicant his costs of the reference, together with witnesses's expenses."
The applicant referred to is the plaintiff. On behalf of the plaintiff a bill of costs was furnished in 1998 to the defendant. The bill of costs amounts to £30,331.65. No demand was made that the bill of costs be referred to the Taxing Master or elsewhere. The plaintiff sought that the bill of costs be discharged. The plaintiff then brought proceedings by way of special summons for an order pursuant to O. 56 r. 4 (f) of the Rules of the Superior Courts and s. 41 of the Arbitration Act, 1954to enforce the provisions of clause 5 of the final award of the arbitrator. He sought, if necessary, judgment in the sum of£30,331.65 (being the bill of costs) together with interest on the sum until judgment.
The High Court ordered, pursuant to s. 41 of the Arbitration Act, 1954, that the plaintiff be at liberty to enforce the arbitration award in the same manner as a judgment or order to the same effect. It was ordered that the plaintiff do recover against the defendant the sum of£30,331.65 and costs of the proceedings when taxed andascertained.
The learned High Court judge adopted counsel's note of his extempore judgment given on the 2 nd July, 2001. Counsel's note states:
"This is an application for a section 41 order to enforce the provision of clause 5 of an arbitrator's award. There were two interim awards and a final award which is dated the 26 th November, 1996 which is exhibited and which was made four and a half yearsago."
Pursuant to the arbitrators order a bill of costs was submitted. This bill of costs was not taxed and was not paid.
Two reasons have been advanced by the defendant as to why this was so.
1. There is an allegation by the defendant that a witness who gave evidence was not qualified. He was not a Chartered Accountant and he was not a Certified Accountant. This was irrelevant said the plaintiff as he was acting within the practice of the profession. I am satisfied that there is no substance to this argument.
2. Another matter arises in relation to the evidence giving by Mr. Neville. Mr. Quilter says that his was part of the partnership expenses. But it seems it is clear that this was not given about the accounts of the partnership. He gave evidence on behalf of one of the parties. This is not denied by the defendant in the pleadings.
The defendant is not entitled to challenge the final award. The arbitrator has made his final award.
A further argument made is that these proceedings are premature. That argument is more impressive. But the position is set out accurately in the letter of Mr. McMahon exhibited. (Judge reads) "This relates to Mr. Neville's costs for preparing accounts for the arbitration on the instructions and on behalf of Mr. Quilter. David Fitzmaurice & Co., were accountants to the partnership and other accountancy services provided to either party by other firms did not relate to the partnership accounts. Unless Mr. Neville's fees are excluded then agreement cannot be reached. I confirm Mr. O'Donnell's fees will not be submitted by Mr. Horan as against the partnership accounts."(Letter November 17, 1999).
I think that that is the reality. The fact is that these were not partnership accounts and this was a lever being exerted by Mr. Quilter. The final award was the final award and these proceedings are notpremature.
The Court then made an Order:
in terms of paragraph 1 of the Special Indorsement of Claim, under section 41 of the Arbitration Act, 1954and
in terms of paragraph 3 of the Special Indorsement of Claim giving the plaintiff judgment for £30,331.65.
Counsel for the plaintiff then applied for interest on the Bill of Costs and witnesses expenses as and from the date of the arbitrator's award and relied on:
(i) section 22 Courts Act, 1981 and
(ii) Best -v- Wellcome Foundation Limited.
The Judge refused to grant interest on the arbitrator's award. But allowed that interest to accrue from the date of hisjudgment/order."
Consequently, it is the latter part of the judgment which is in issue on this appeal, although the context is explained in the body of the judgment. It is the...
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