Keenan v Shield Insurance Company Ltd

• Jurisdiction: Ireland
• Judge: McCarthy J
• Judgment Date: 28 March 1988
• Neutral Citation: 1988 WJSC-SC 352
• Court: Supreme Court
• Docket Number: [S.C. No. 122 of 1987],(122/87)
• Date: 28 March 1988

1988 WJSC-SC 352

THE SUPREME COURT

Chief Justice

Walsh J

Griffin J

Hederman J

McCarthy J

(122/87)

KEENAN v. SHIELD INSURANCE CO LTD

KEENAN

V

SHIELD INSURANCE CO. LTD

1 Judgment of McCarthy J delivered the 24th day of March 1988 [NEM DISS]

2 The plaintiff Patrick Keenan (the insured) appeals from an order of the High Court (Blayney J) dismissing a Special Summons in which, as amended, the insured sought an order setting aside the award of an Arbitrator and substituting an order to the effect that the insured is entitled to succeed in his claim as against the defendants (the Company). At the start of the hearing, this Court raised the question of the jurisdiction of the High Court to entertain the claim. No such question was raised at the hearing in the High Court because, as Counsel informed the Court, the Company had been advised that the objection could not be successfully maintained having regard to the decision of Costello J in Church and General Insurance Co., V. Connolly and Other (1).

THE FACTS

3 2 "1. By a proposal form dated the 22nd September 1975 signed by the insured, the insured applied to the insurers for insurance cover in respect of the private residence of the insured at Painstown, Donadea, Naas in the County of Kildare and the contents thereof and pursuant to such proposal an insurance policy was issued by the insurers being an "all-in" policy number 80048578 in which the sum insured was given as £14,000 in respect of the buildings therein described and £2,000 in respect of the contents of same; the period of insurance being given as 24th September 1975 to 24th September 1976; and in addition to the insured the interest of Kildare County Council was noted on the said policy.

4 2. A fire took place at the said premises on or about the 8th day of October 1975 in respect of which

the insured claims to be entitled to be indemnified by the insurers for destruction of the said premises and the contents thereof

5 3. The insurers have disputed their liability to pay to the insured the sums claimed by the insured or any sum whatever, on the following grounds:-

6 (a) It is claimed that there was a misrepresentation of fact and a non disclosure of relevant information by the insured to the insurers when making the proposal for said insurance cover, of such nature as to entitle the insurers to repudiate liability under the policy and the insurers have repudiated liability accordingly."(2)

7 The proposal form, inter alia, contained the following:-

"8 Have you every sustained loss or damage by any of the risks or liabilities you now wish to insure against? If so give particulars....No"

8 I hereby declare that the above particulars and answers are true and Complete in every respect and that no material fact has been suppressed. or with-held and I further declare that if such statements and particulars are in the writing of any person other than myself, such person shall be deemed to have been my agent for the purpose of filling the same and I agree that this declaration and the answers above given shall be the basis of the Contract between me and the Company".

9 After some delay, the dispute was, pursuant to the contract, referred to the Arbitration of James A. Nugent, Senior Counsel, no intention contrary to Section 27 of the Arbitration Act, 1954being expressed. Mr. Nugent duly entered upon the Arbitration and on the 31st October, 1984 published his award in which he found:-

10 1. That the declaration (supra) constituted a condition precedent of the contract between the insured and the Company that the answers on the proposal form should be true and complete in every respect.

11 2. That the answer to question No.8 on the proposal form was not true nor complete.

12 3. That although the answer to question 8 on the proposal form was not true and complete that its inadequacy and incompleteness did not amount to a misrepresentation or concealment of a material fact by the insured.

13 4. That the insured was not entitled to recover any sum in respect of his claim against the Company under the said policy and that the Company is under no liability to the insured under the said policy.

THE PRELIMINARY POINT

14 Although the issue was not taken in the High Court this Court must reserve its right, in an appropriate case, to raise a question fundamental to the jurisdiction of the High Court, whence the appeal to this Court comes. Accordingly, the matter has been fully argued as a preliminary issue and this judgment is confined to that issue. It is necessary to examine the procedure of the Arbitration Acts, 1954and 1980.

ARBITRATION

15 Until 1954, the submission to and enforcement of arbitration was governed by common law rules; the Arbitration Act, 1889(3) did not apply to Ireland the only relevant statutory provisions which related to enforcement being the statute 10 Will.3.c.14(Ir) and the Common Law Procedure Amendment Act(Ireland)1856 (4) with the procedural amendments made necessary by the Supreme Court of Judiciary Act (Ireland)1877 (5). The Act of 1954 (6) was "to make further and better provision

in respect of arbitrations." It took as its model the English Acts of 1889 and of 1950 and was intended to provide a comprehensive scheme whereby matters commercial, such as in construction, insurance, financial services, shipping and kindred and other industries might be resolved without recourse to the Courts and, in many instances, by those best equipped for that purpose by training and experience in the particular field. There was no purported exclusion of the supervisory or enforcement role of the Courts as "a back-up" to the arbitration procedure which, itself, allowed for reference to the Courts in different ways when appropriate. The underlying intent, however, was to provide a private and appropriate forum, largely for business disputes, reminiscent of the motives that lead the Dublin business community to found the Dublin Chamber of Commerce (7). This statutory intent is particularly to be inferred from Section 12 repealed in 1980 and reinacted in altered form by Section 4 of the Arbitration Act, 1980 (8). The power to stay proceedings where there is an arbitration agreement was, under section 12, to be exercised when the Court was satisfied that there was not sufficient reason why the matter should not be referred in accordance with the agreement, but section 5 of the 1980 Act which precludes the Court from making an order staying the proceedings -

"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,"-plainly, emphasises the extra-curial nature of arbitration procedure.

16 The Act of 1980 is entitled "an Act to enable effect to be given to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on the 10th day of June, 1958, and to certain provisions of the...