Marshall v Capital Holdings Ltd t/a Sunworld
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 21 July 2006 |
| Neutral Citation | [2006] IEHC 271 |
| Court | High Court |
| Docket Number | [No. 253 SP/2004] |
| Date | 21 July 2006 |
[2006] IEHC 271
THE HIGH COURT
AND
PACKAGE HOLIDAYS & TRAVEL AGENTS ACT 1995 S3
ARBITRATION ACT 1954 S29(2)
RSC O.56 r4
EUROPEAN COMMUNITIES (FAIR TERMS & CONSUMER CONTRACTS) REGS 1995 SI 27/1995
RSC O.56 r3
VOGELAAR v CALLAGHAN 1996 2 ILRM 226
DOYLE v KILDARE CO COUNCIL 1996 ILRM 252
ARBITRATION ACT 1954 S38
KEENAN v SHIELD INSURANCE CO LTD 1988 IR 89
ARBITRATION ACT 1954 S9
TAYLOR (DAVIS) & SONS v BARNET TRADING CO 1953 1 WLR 562
BERNSTEIN & MEES HANDBOOK OF ARBITRATION PRACTICE (1987)
ARBITRATION ACT 1954 S27
ARBITRATION ACT 1954 S29
ARBITRATION ACT 1954 S30
EC DIR 93/13 ART 3
EC DIR 93/13 ART 3(2)
EC DIR 93/13 ART 3(4)
EC DIR 93/13 ART 3(5)
EC DIR 93/13 ART 3(6)
EC DIR 93/13 ART 3(3)
EC DIR 93/13 ART 3(7)
EC DIR 93/13 SCH 3
PICARDI v CUNIBURTI 2002 QB EWHC 2923
BRYEN & LANGLEY LTD v BOSTON 2004 QB EWHC 2450
ARBITRATION ACT 1979 (UK)
MUSTILL & BOYD COMMERCIAL 2ED 1989
NETHERLANDS CODE OF CIVIL PROCEDURE ART 1701(6)
NETHERLANDS CODE OF CIVIL PROCEDURE ART 1057(4)(e)
GERMAN ZPO ART 1054(2)
BINGHAM REASONS & REASONS FOR REASONS: DIFFERENCE BETWEEN A COURT JUDGMENT & AN ARBITRATION AWARD" 1988 ARBITRATION INTERNATIONAL 141
EUROPEAN CONVENTION ON INTERNATIONAL COMMERCIAL ARBITRATION 1961 ART 8
EUROPEAN CONVENTION ON INTERNATIONAL COMMERCIAL ARBITRATION 1961 ART 31(2)FOUCHARD GAILLARD GOLDMAN INTERNATIONAL COMMERCIAL ARBITRATION 1999 1392-1395
MANNING v SHACKLETON 1996 3 IR 85 1997 2 ILRM 26
ARBITRATION ACT 1954 S36
O'SULLIVAN v WOODWARD 1987 1 IR 255
GERAGHTY v ROWAN INDUSTRIAL ESTATES 1988 IR 419
MORAN v LLOYDS 1983 QB 542
CHURCH & GENERAL INSURANCE CO v CONNOLLY & MCLOUGHLIN UNREP COSTELLO 7.05.1981 1981/9/1523
ARBITRATION:
Award
Set aside - Remit - Holiday claim - Booking form lost - Plaintiff sought to refer to arbitration - Whether acquiescence - Whether clause drawn to attention - Whether clause unfair - Whether plaintiff afforded fair procedures - Whether arbitrator having jurisdiction to award costs - European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (SI27/1995) - Claim dismissed (2004/253SP - Murphy J - 21/7/2006) [2006] IEHC 271 Marshall v Capitol Holdings Ltd
the plaintiff allegedly injured himself whilst on a holiday booked with the defendant. The claim was initially referred to arbitration, where the defendant was awarded its costs of the plaintiff’s unsuccessful reference. When the plaintiff was served with a bill of costs for the arbitration, two years after the award, he applied to the High Court to have the award set aside and for leave to have the matter tried in a court alleging, inter alia, that the contract was unfair and that the conduct of the arbitration hearing was unfair and biased. He also contended that the arbitrator should have given a reasoned award.
Held by Mr Justice Murphy in refusing the relief sought that the plaintiff had acquiesced and could not afterwards claim that the conditions in the booking form did not apply. That there was no general requirement in Irish law that an arbitrator given a reasoned award. Moreover, that the delay in applying to set aside the award was inordinate
That even within time, the courts were generally reluctant to set aside arbitration awards.
Reporter: P.C.
On 22nd October, 1999 the plaintiff's travelling companion, David McElroy, booked a Christmas and New Year, 2000 holiday for and on behalf of the plaintiff and himself with the defendant in the Paradiso Apartments, Playa del Ingles in Gran Canaria. The booking was from 24th December, 1999 to 8th January, 2000.
The agreement with the defendant, who was the tour organiser, contained a condition that disputes be referred to arbitration under the Chartered Institute of Arbitrators, Irish Branch scheme.
The plaintiff says that, as a result of a fall on "unguarded and unmarked steps" in the accommodation allocated to him and his travelling companion in the Paradiso Apartments, he sustained severe personal injuries, inconvenience and expense which he detailed in a letter of complaint to the defendant on 18th January, 2000.
The plaintiff, as claimant in the reference, was represented by solicitor and counsel.
The arbitrator duly accepted the nomination by the Chairman of the Chartered institute of Arbitrators, Irish Branch on 13th November, 2000. The arbitrator convened a preliminary meeting with the parties later that month and directed points of claim and points of defence.
In accordance with the arbitrator's order for directions neither party requested a reasoned award. Pleadings were closed on 2nd July, 2001. A hearing date was agreed for 12th September, 2001.
By interim award dated 12th September, 2001, the arbitrator thereby awarded and determined that the plaintiff's claim had failed. The issue of costs was reserved to a further hearing and final award.
Following the further hearing, a final award was made on 21st November, 2001, whereby the arbitrator awarded and determined that the respondent (the defendant herein) recover from the claimant (the plaintiff herein) the costs of the reference and award.
The Taxing Master, by Certificate dated 12th July, 2004, taxed the costs of the respondent to the sum of €9,690.13.
Over two and a half years later, by special summons dated 25th June, 2004, the plaintiff in person, having claimed an extension of time, applied to the court for an order to set aside both the interim award dated 12th September, 2001, and the final award of an arbitrator dated 21st November, 2001, and/or to grant leave to have the matter re-tried in a court of competent jurisdiction.
The special endorsement of claim also sought an order declaring that any consumer who was a party to any contract requiring any dispute to be referred to arbitration should not only be told of this clause or condition but that the consequences of such condition be explained fully in advance of signing such a contract. The plaintiff also sought a declaration that, even in the event of such circumstances having been satisfied, if a dispute should thereafter arise the consumer should still have the option of serving notice on the other party to the contract confirming that it was the consumer's wish, regardless of any alleged prior consent to arbitration, to have the dispute resolved at a trial to be heard in a court of competent jurisdiction in accordance with the normal legal rules of Irish law, rather than by way of referral to arbitration.
The first interim award dated 12th September, 2001, recited as follows:
(1) By an agreement in writing dated on or about 27th October, 2000 and made between the claimant and the respondent, it was agreed by the parties that disputes and differences arising between them out of or in connection with a holiday taken by the claimant in Gran Canaria in or about December, 1999/January, 2000, which was purchased from the respondent by the claimant, be referred to the arbitration of an arbitrator to be nominated by the Chairman of the Chartered Institute of Arbitrators, Irish Branch, in accordance with the terms of the arbitration scheme arranged by the said branch for the resolution of disputes involving the trading of tour organisers (as defined in s. 3 of the Package Holidays and Travel Agents Act,1995).
(2) By letter dated 9th November, 2000, the Chairman of the Chartered Institute of Arbitrators, Irish Branch, nominated (the Arbitrator) in this reference and invited (him) to accept the said nomination.
(3) By letters to the said Chairman of the Chartered Institute of Arbitrators, Irish Branch, dated 13th November, 2000, (the Arbitrator) accepted the nomination offer said.
(4) By letters to the parties to this reference, dated 15th November, 2000 (the Arbitrator) convened a preliminary meeting for the purpose of giving directions on procedural matters for the 24th day of November, 2000, which said meeting having been at the request of the respondent rescheduled to the 1st day of December, 2000, the preliminary meeting was held on that day. The representatives and parties agreed that (the Arbitrator) had been validly appointed and consented to the directions to be given.
(5) By order for directions in writing embodying the matters consented to by the parties and dated 14th December, 2000, (the Arbitrator) ordered the procedure to be adopted in the reference and formally communicated to the parties the applicable rules of the Chartered Institute of Arbitrators, Irish Branch.
(6) On the 4th day of January, 2001, the claimant delivered points of claim in writing, claiming damages as against the respondent for breach of contract, negligence and breach of duty, including statutory duty, by reason of the claimant's fall while in the accommodation premises provided by the respondent, its servants or agents, as part of the package holiday to be provided to the claimant in Gran Canaria from 24th December, 1999 to 8th January, 2000, pursuant to the agreement made between the claimant and the respondent made on or about 22nd October, 1999, in consequence whereof the claimant alleged he sustained severe personal injuries, loss, damage, inconvenience and expense on the basis of the allegations of fact and law and that the respective particulars thereof furnished in the points of claim aforesaid.
(7) By notice for particulars dated 2nd February, 2001, the respondent requested further and better particulars of the claimant's claim.
(8) Replies to the...
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...171 . My decision also seems to be entirely consistent with the principles outlined in Marshall v. Capital Holdings Ltd t/a Sunworld [2006] IEHC 271, wherein Murphy J made clear that “ The court has a common law jurisdiction to set aside an award of an arbitrator where an error of law appea......