view selected judgments and notes of interest to ADR practitioners below.
Expert Determination – extent to which an expert can decide questions of law - scope of an expert’s mandate
The Supreme Court issued an important judgment in Dunnes Stores v. McCann and Ors (22 January 2020) in the context of ADR, that is, concerning the scope of authority of an independent expert appointed for the resolution of a dispute. It was the first time such a matter came before the Irish courts.
The dispute essentially revolved around the validity of a certificate of completion in a construction contract. The judgement focuses on the extent to which an expert can decide questions of law or whether a court can be asked in advance to determine questions of law which may arise in the course of the resolution of the dispute.
Arbitration - reference to arbitration where defendant demonstrated that requirements of Model Law satisfied - October 2019
In XPL Engineering Limited v. K & J Townmore Construction Limited (Barniville J) (High Court, 11 October 2019), the court referred the parties to arbitration on the basis that the defendant had demonstrated that the requirements of the Model Law (as incorporated into Irish law by s. 6 of the 2010 Arbitration Act) have been satisfied and that a dispute exists between the parties in respect of the engineering company’s entitlement to a judgment in respect of the sum now claimed in the summary proceedings.
Key issues considered include interpretation of Article 8 (1) of the Model Law, principles to be applied to the meaning of dispute (see in particular para. 96), scope of the dispute, and that the obligation to refer applies to claims which the plaintiff had not formally consented to refer to arbitration having regard to the terms of the relevant arbitration agreements.
Arbitration – Refusal to set aside an arbitral award – November 2018
The jurisdiction of the High Court to set aside an arbitrator's award and the general principles upon application to set aside an arbitrator’s award were considered in the case of Ryan v. Kevin O'Leary (Clonmel) Ltd [2018] IEHC 660 (High Court, Barniville J, 23 November 2018).
The applicant’s case included arguments that the arbitrator’s award contained matters beyond the scope of the submission’s made to the arbitrator, that it was in conflict with the public policy of the State, that the award was irrational and that the arbitral process failed to vindicate the apllicants’ rights to natural and constitutional justice.
In refusing the application to set aside the award, the court found (inter alia) that the arbitrator had not departed from the pleadings, evidence and submissions, that some inappropriate and grossly unfair allegations had been made against arbitrator and that in reality the application was an attempt to appeal the arbitrator’s award.
Arbitration - setting aside of arbitral award - uncontested hearing - May 2017
Mr. Justice Brian J. McGovern refused to set aside an arbitral award arising from an uncontested hearing.
Court guidance on when it will and will not suggest mediation - June 2016
The Courts have given guidance concerning the circumstances in which the parties ought to be invited to engage in an ADR process under Order 56A, most recently in Grant & Ors v Minister for Communications & Ors.
ADR process approved by High Court - December 2015
Practitioners should be aware of a decision made by The Hon. Mr. Justice Kevin Cross in the High Court on 16 December 2015, in Gaffney V Depuy International Limited.
The ADR Committee of the Law Society believes that this is the first time an Irish court has approved an ADR Process designed specifically to deal with a class of actions which, in the views articulated before the Court, could occupy the Personal Injury List of the High Court for a number of years to come.