Sweeney v Mulcahy

• Jurisdiction: Ireland
• Judge: O'Hanlon J.
• Judgment Date: 01 January 1993
• Neutral Citation: 1993 WJSC-HC 1452
• Docket Number: No. 14201p/1991
• Court: High Court
• Date: 01 January 1993

1993 WJSC-HC 1452

THE HIGH COURT

No. 14201p/1991

SWEENEY v. MULCAHY

BETWEEN

NUALA SWEENEY

PLAINTIFF

AND

SIOBHAN MULCAHY

DEFENDANT

Citations:

ARBITRATION ACT 1980 S5

ARBITRATION ACT 1980 S2

CAERLEON TINPLATE CO V HUGHES 60 LJQB 640

LEWIS, IN RE 1 QBD 724

ATTORNEYS & SOLICITORS ACT 1870 S4

BAKER V YORKSHIRE FIRE & LIFE ASSURANCE CO 1892 1 QB 144

ARBITRATION ACT 1889 S27

HICKMAN V KENT OF ROMNEY MARSH SHEEPBREEDERS ASSOCIATION 1915 1 CH 881

ARBITRATION ACT 1889 S27(4)

SALE OF GOODS ACT 1893 S4

STATUTE OF FRAUDS 1695

CHITTY ON CONTRACT 26ED 1989 PARA 1067

Synopsis:

ACTION

Stay

Contract - Terms - Dispute - Arbitration - Reference - Requirement - Denial - Letter referring to conditions of engagement of professional body - Letter signed by one party only - Whether householder bound by such conditions - Stay of plaintiff's action sought by defendant architect - (1991/14201 P - O'Hanlon J. - 13/11/92)

|Sweeney v. Mulcahy|

ARBITRATION

Clause

Existence - Denial - Contract - Householder - Architect - Agreement - Formation - Letter referring to conditions of engagement of professional body - Letter signed by one party only - Whether householder bound by such conditions - Stay of plaintiff's action sought by defendant architect - Arbitration Act, 1980, ss. 2, 5 - (1991/14201 P - O'Hanlon J. - 13/11/92)

|Sweeney v. Mulcahy|

PRACTICE

Action

Stay - Contract - Terms - Dispute - Arbitration - Reference - Requirement - Denial - Letter referring to conditions of engagement of professional body - Letter signed by one party only - Whether plaintiff houseowner bound by such conditions - Stay of plaintiff's action sought by defendant architect - (1991/4201 P - O'Hanlon J. - 13/11/92)

|Sweeney v. Mulcahy|

1 Judgment delivered the 13th day of November, 1992 by O'Hanlon J.

2 In these proceedings the Plaintiff claims damages against the Defendant for loss and damage alleged to have been caused to the Plaintiff by reason of negligence and breach of contract on the part of the Defendant in her capacity as Architect. The claim relates to professional services provided by the Defendant for the Plaintiff in the year 1988 in relation to the renovation and restoration of a dwelling-house of the Plaintiff known as Lakeview Cottage and situate at Feakle, Co. Clare.

3 By Notice of Motion dated the 24th April 1992, the Defendant applied for an Order pursuant to Section 5 of the Arbitration Act, 1980, staying the present proceedings on the ground that the agreement between the Plaintiff and the Defendant in relation to the engagement of the Defendant as Architect provided that any dispute, difference or question that might arise between the parties arising out of same were to be referred to arbitration.

4 The Plaintiff denies that this was a term of the contract and further claims that in any event there was no agreement in writing made between the parties and providing for arbitration, as required by the provisions of the Arbitration Act, 1980, Section 2.

5 The first meeting between the parties in relation to the work which the Plaintiff wished to have carried out on the said dwelling-house took place at the Plaintiff's said premises on or about the 22nd October, 1987. The work which was envisaged was discussed between them and the Defendant agreed to act as Architect for the Plaintiff in connection with the project. Some matters were left outstanding, however, and in particular the remuneration to be paid to the Defendant for any work she might carry out.

6 The Defendant wrote to the Plaintiff on the 11th November, 1987, setting out in considerable detail the different stages that would be involved in the work and the nature of the work that would have to be carried out to meet the requirements of the Plaintiff and her husband.

7 The following passages appear in the said letter:-

8 Dear Mr. and Mrs. Hastings

9 Further to our telephone conversations and meeting on the site on 22/10/1987, I wish to confirm that I am retained as your architect for the above scheme until further notice, and subject to the Royal Institute of Architects of Ireland conditions of engagement and scale of minimum charges. A copy of these conditions may be made available to you on your request, but basically the items which will concern you most will be the fees for the work. Fees at this stage will be difficult to estimate as they will be calculated on the basis of time and expenses which you require me to spend ...

10 Because of the nature of our work and the ongoing costs incurred, it is accepted practice for most Architects and other professionals to require that an advancement is made on fees on commencement of a project. To this end I would be much obliged if you could forward a payment of IR£400.00 at this stage. This amount will be treated as a deposit which will be deducted from the final payment due to me under our contract. I trust that this arrangement will meet with your agreement ...

11 You might phone me or drop me a note with your comments on the enclosed and perhaps then we can arrange to meet, either here or in Dublin.

12 Yours sincerely,

13 There was no formal acknowledgement in writing by the Plaintiff of the said letter but the parties met again and proceeded with the project in the manner outlined in the letter. The advance payment of £400 requested in the letter was duly paid by the Plaintiff to the Defendant. The Plaintiff did not ask for a copy of the RIAI Conditions of Engagement and Scale of Minimum Charges which the Defendant had offered to make available. However, evidence was given by Brian C. Grubb, Architect, that his firm, Murray O'Laoire Associates, had previously been engaged in the year 1984 to act for the Plaintiff and her husband in relation to the same, or a similar project, and a letter dated 11th October, 1984 from Mr. Grubb to his clients enclosed a copy of the Conditions of Engagement and Scale of Minimum Charges of the Royal Institute of Architects of Ireland. This may explain why the Plaintiff did not take up the offer made by the Defendant to send on a copy of this document, if required.

14 Having regard to the foregoing facts I am of opinion that the agreement between the Plaintiff and the Defendant must be regarded as incorporating the RIAI Conditions of Engagement and Scale of Minimum Charges, as this was expressly put forward by the Defendant at the outset as the basis on which she was prepared to act as Architect in the matter, and the Plaintiff allowed the work to proceed thereafter without expressing any dissent.

15 This does not conclude the...