Simon J Kelly & Partners v Dixon
Jurisdiction | Ireland |
Judge | Ms. Justice Laffoy |
Judgment Date | 03 December 2012 |
Neutral Citation | [2012] IEHC 522 |
Court | High Court |
Date | 03 December 2012 |
[2012] IEHC 522
THE HIGH COURT
BETWEEN
AND
ARBITRATION ACT 1954 S41
RSC O.42 r24
ARBITRATION ACT 1954 S34
STATUTE OF LIMITATIONS 1957 S11(6)(A)
STATUTE OF LIMITATIONS 1957 S11(1)(D)
STATUTE OF LIMITATIONS 1957 S11(6)(B)
MCMULLEN v CLANCY 2002 3 IR 493 2002 11 ICLMD 9 2002/20/5156
RSC O.28 r11
BELVILLE HOLDINGS LTD v REVENUE CMRS & CRONIN (INSPECTOR OF TAXES) 1994 1 ILRM 29 1993/1/69
AINSWORTH v WILDING (NO 1) 1896 1 CH 673
GREENDALE DEVELOPMENTS LTD (IN LIQUIDATION), IN RE; FAGAN & MALONE v MCQUAID 2000 2 IR 514 2001 1 ILRM 161 2000/9/3223
MCCAUGHEY v STRINGER & MAHAFFY 1914 1 IR 73
Litigation - Arbitration - Award made - Interest - Enforcement of judgment - Rules of the Superior Court - Arbitration Act 1954
Facts: Following an award of €47,264.38 made through arbitration, the plaintiff initiated proceedings by special summons on the 22nd February 2002 seeking an order pursuant to section 41 of the Arbitration Act 1954 allowing judgment against the defendant. The defendant offered no appearance and an order was made on the 13th May 2002 along with costs in the plaintiff's favour. However, the order that was made did not include an express stipulation that the plaintiff could recover the arbitration award against the defendant contrary to usual practice. In 2011, the plaintiff made an application pursuant to Order 42, rule 24 of the Rules of the Superior Courts for leave to issue execution against the defendant which was contested. The application was refused on the basis of the relevant arbitration award not being expressly part of the original order.
In this application, the plaintiff sought enforcement of the original arbitration award of €47,264.38. Alternatively, the plaintiff averred that there should be enforcement of the order made on the 13th May 2002 which after interest came to €82,554.93. The defendant contended that the delay in enforcing the judgment in this case was such as to preclude the plaintiff from doing so now.
Held by Laffoy J that s. 41 of the Arbitration Act 1954 allowed enforcement of an arbitration award in the same manner as an order or judgment of the same effect if the leave of the court was granted. It was therefore logical that the exact arbitration award would form the basis of the order. In the present circumstances, it was clear that on the 13th May 2002 the court had enforced the arbitration award by making an order. It did not make sense then to suggest that the court never intended the specific award of €47,264.38 to be enforceable by the plaintiff against the defendant, even if an express provision for this wasn't included in the order. It was held to have likely been a mistake by the court and an amendment was made to the original order making an express provision to this effect.
In terms of the interest on that award, it was held that the plaintiff had failed to move to amend the original order until now and so the delay in the enforcement of the order lies largely with them. In the circumstances, it would be unjust to the defendants to allow the plaintiff to claim interest.
Amendment to the original order to include an express provision of entitlement of €47,264.38 in favour of the plaintiff against the defendant.
Judgment of Ms. Justice Laffoy delivered on 3rd day of December, 2012.
1. These proceedings were initiated by a special summons which issued on 22 ndFebruary, 2002. In the special endorsement of claim the relief sought was formulated as follows:
"An Order Pursuant to Section 41 of the Arbitration Act 1954 permitting the Plaintiff to obtain and register judgement on foot of an award made the 27 th November, 2001 by Kevin Brady, Arbitrator in proceedings entitled '… In the Matter of an arbitration between Simon J. Kelly & Partners, Claimant and Tony Dixon and Tina Dixon Respondents'."
The summons was grounded on the affidavit of Oliver Foley, the plaintiff's then solicitor, which was sworn on 6 th March, 2002. The affidavit clearly itemised the various elements of the arbitration award, including the costs awarded, and the aggregate of the sums due on foot of the award was stated to be €47,264.38. The special summons came on for hearing on 13 th May, 2002. The order made on that day by the Court (Smyth J.) recited that there had been no appearance by or on behalf of the defendants. The curial part of the order provided:
"IT IS ORDERED pursuant to Section 41 of the Arbitration Act 1954 that the plaintiff be at liberty to enforce the arbitration award made on the 27 th November, 2001 by Kevin Brady in the same manner as a Judgment and Order to the same effect."
It was also ordered that the plaintiff recover from the defendants the costs of the proceedings, when taxed and ascertained. The plaintiff's costs were subsequently taxed at €7,059.67, as is evidenced by the certificate of the Taxing Master dated 5 th March, 2003.
2. What is significant about the perfected order of 13 th May, 2002 is that it did not include, as is usually included in such an order enforcing an arbitration award, an express order that the plaintiff do recover against the defendant the amount due on the award, that is to say, the sum of €47,264.38. The reality, therefore, is that judgment was never entered in the terms of the award, that is to say, for the total amount awarded to the plaintiff in the arbitration. Nonetheless, on 7 th November, 2006 the plaintiff secured the registration of a judgment mortgage as a burden on the lands registered on Folio 21952F of the Register of Freeholders, County Galway, of which Anthony Dixon, being, presumably, the first defendant, was the registered owner, on the basis of the order of 13 th May, 2002. It was recorded on the folio that the amount due on the judgment was €69,774.05. As I understand it, the judgment mortgage was discharged from the folio on 13 th November, 2012 on the application of the plaintiff. That was the proper course for the plaintiff to adopt, because the plaintiff should not have applied to have the judgment mortgage registered and the Land Registry should not have registered it on the folio.
3. In 2011 the plaintiff brought an application in these proceedings under Order 42, rule 24 of the Rules of the Superior Courts (the Rules) for leave to issue execution against the defendants, six years having elapsed since the date of the order of the Court. The application was resisted by the defendants. It was refused on the basis that judgment had not been entered for the amount due on foot of the arbitrator's award.
4. The relief sought on this application is an order entering judgment in the terms of the arbitration award dated 27 th November, 2001 in the sum of €47,264.38 as of 13 th May, 2002. An alternative relief sought is an order entering judgment for the sum of €82,554.93, or such other amount inclusive of interest as the Court shall deem meet, on foot of the leave to enforce the arbitration award granted by the order of 13 th May, 2002. No specific jurisdiction of the Court was invoked by the plaintiff in the notice of motion.
5. In the affidavit of Conor Kelly, a partner in the firm of architects named as plaintiff in the proceedings, grounding this application, it was averred that the deponent had been advised by his legal advisers that an arbitration award carries interest pursuant to s. 34 of the Act of 1954 as and from the date of the award at the same rate as a judgment debt, but, in circumstances where the original application to enforce the award did not seek to calculate the interest that had accrued, the plaintiff was waiving its entitlement to interest on the award between 27 th November, 2001 and 13 th May, 2002. So, as I understand the position, the sum of €47,264.38 does not include interest for that period. As regards the figure of €82,554.93, which includes interest to 13 th September, 2012, my understanding is that counsel for the plaintiff did not press for the alternative relief on the hearing of the application.
6. There was a degree of confusion discernible in the submissions made on behalf of the parties in relation to the application of the Statute of Limitations, 1957 (the Act of 1957) to the plaintiff's claim in the events which have happened. Counsel for the plaintiff submitted that the plaintiff has twelve years from 13 th May, 2002 in which to enforce the judgment. I assume that in making that submission, counsel was relying on s. 11(6)(a) of the Act of 1957 which...
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