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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Laurence Duggan & Sons Ltd. v. Winkens [1987] IEHC 33 (31 July 1987) URL: http://www.bailii.org/ie/cases/IEHC/1987/1987_IEHC_33.html Cite as: [1987] IEHC 33 |
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Laurence Duggan & Sons Ltd. v. Winkens [1987] IEHC 33 (31 July 1987)\
THE HIGH COURT
1986 No. 1033Sp.
BETWEEN:
LAURENCE DUGGAN & SONS LTD
PLAINTIFF
AND
MAGDA E. WINKENS
DEFENDANT
AND
THE HIGH COURT
1987 No. 303lSp.
IN THE MATTER OF THE ARBITRATION ACT 1954 IN THE MATTER OF AN ARBITRATION
BETWEEN:
MAGDA E. WINKENS
PLAINTIFF
AND
LAURENCE DUGGAN AND SONS LTD AND ANGEL BRUTON
DEFENDANTS
Judgment of Miss Justice Carroll delivered on the 31st of July 1987.
Laurence Duggan & Sons Ltd., (the Company) sued Magda E. Winkens in an action commenced by summary summons issued the 13th of November 1986 and .numbered 1033 Sp. He claimed an order pursuant to section 41 of the Arbitration Act 1954 that the interim award of Angel Bruton dated the 6th of June 1986 and the award of costs dated the 8th of October 1986 be enforced as a judgment.
The arbitration arose out a building contract made between the Company and by Mrs. Winkens1 husband on her behalf dated the 2nd of June 1978. The works were completed mid June 1979.
Her husband died on the 18th of June 1982. Disputes between the parties could not be resolved and the matter was referred to arbitration on the 6th of September 1983. Angel Bruton was appointed as Arbitrator by the President of the Royal Institute for Architects in Ireland. The agreement to appointment of arbitration with Angel Bruton dated the 29th of September 1983 provided for the payment of fees, costs and expenses in connection with the arbitration charged at the rates therein set out, and that the Arbitrator should be entitled to tax the said fees and expenses.
The schedule provides:
(1) Minimum fee (for up to 3 hours) £200
(2) Fee for each hour in excess of 3 hours £ 40
(3) Expenses incurred eg., hire of room, hotel and travelling expenses, document copying at cost
(4) Fees and costs of legal or other advisers or assessors at cost
(5) V.A.T. at the rate current at the time of charge
Points of claim were served on the 29th of May 1984. The Company claimed £13,353.08 balace on final account of £44,806.98 less payments of £31,453.90.
Points of defence were delivered the 1st of September 1984. It was claimed inter alia that the Company were in breach of a fundamental condition to complete within four to five months; it was denied the works were completed; it was denied that the works were carried out; it was denied there were extras. Mrs. Winkens also made a counterclaim. A Notice for Particulars was served by the Company and answered by Mrs. Winkens.
The Arbitrator had a preliminary meeting on the 10th of November 1983 and a further preliminary meeting on the 5th of February 1986. The hearing took place on the 19th of March JP 1986. At the arbitration the Company was represented by a Solicitor and Counsel and Mrs. Winkens was represented by a Solicitor.
The Arbitrator made an interim award on the 6th of June 1986 awarding the Company £10,836.08 (inclusive of V.A.T.) and awarding Mrs. Winkens £550 (inclusive of V.A.T.), making a net award of £10,286.08.
The costs of the award measured at £3,035 were awarded to the Company. The Arbitrator reserved the costs of the award and arbitration to further consideration. In her replying affidavit to the Company's claim, Mrs. Winkens claimed that the award should be set aside on the grounds
(1) That £5,000 (made up of two cheques, one for £2,000 paid the 14th of December 1978 and one for £3,000 paid the 29th of January 1979) were not credited to the final account and neither was the sum of £147 paid to Brendan Duggan as agent of the Company.
(2) That a letter written by her husband dated the 16th of October 1980 was wrongly ruled inadmissible and the Arbitrator persistently refused to admit evidence concerning the building project and therefore the conduct of the arbitration was unfair.
(3) That the Arbitrator inspected the premises in the company of Mr. Duggan for the Company but in her absence and that this was unfair conduct.
(4) That the costs awarded were excessive and unjustified and ought to be taxed.
(5) That the Arbitrator did not itemise the sums awarded and it was necessary for her (Mrs. Winkens) to know how they were made up.
She sought an extension of time to serve a special summons to set aside the award.
In his replying affidavit dated the 27th of February 1987 Mr. Laurence Duggan claims that credit for the cheque for £2,000 ! paid on the 14th of December 1978 was given in the final account as cash received and he refers to the final account. He said there was no record of receiving the £3,000 cheque. He makes the case that it was never put to any witness that the £2,000 and the £3,000 cheques were not credited and that Mrs. Winkens had a considerable time to prepare her case and no question was raised about the £5,000. He said the sum of £147 was ventilated in Court and the Arbitrator's award was based on the evidence heard. He denies the letter was wrongly excluded and the hearing was unfair. He denies having any conversation with the Arbitrator when they went to inspect the premises and said he did not inspect with the Arbitrator. He says the Arbitrator's fees which were paid by the Company were not excessive and he claims the Arbitrator was not obliged to set out the facts on the award.
In a further replying affidavit dated the 10th of March 1987 Mrs. Winkens still claimed the £5,000 was not credited saying that she did not know until after the arbitration the money was not credited. She had a further complaint that the Plaintiffs Solicitor did not indicate in advance that Counsel would be instructed and that she was threatened with having to pay the costs of the day if an adjournment was sought to enable her to instruct Counsel. She rejects the other allegations.
By Order dated the 19th of March 1987 Costello J. extended the time to apply by special summons to remit or set aside the award. The second proceedings. No. 303 Sp 1987, were issued with Mrs. Winkens as Plaintiff and the Company and Angel Bruton as Defendants based on her two affidavits sworn in the other matter.
Angel Bruton put in a replying affidavit dated the 22nd of May 1987 giving a breakdown of costs of the award, in which she charged for 7 award hours and 34 travelling hours. Following a letter in which Mrs. Winkens Solicitor sought further particulars, she put in a further affidavit dated the 19th of June 1987 correcting the award hours to 17 and the travelling hours to 24.
The grounds therefore which are put forward for setting aside or remitting the award are misconduct of the proceedings by the Arbitrator
(1) By excluding the letter from Mr. Winke dated the 16th of October 1980 and generally hindering Mrs. Winkens in making her case.
(2) By threatening to make her pay the costs of the day if an adjournment was sought to brief Counsel.
(3) By visiting the premises in the company of one party only.
(4) By awarding hereself excessive costs.
(5) By failing to itemise how the sums awarded were arrived at. And one further ground, that further evidence should be received to show that credit for payment of £5000 was not given in the final account when this was not known to her prior to the arbitration and also that credit was not given for the sum of £147.
The Court has power to set aside or remit an award for misconduct or for the production of new evidence. Therefore the first question is whether there was an irregularity in the proceedings amounting to misconduct. I do not find there is evidence to sustain this allegation. In relation to the visit to Mrs. Winkens1 home following Mr. Duggan's car, there is evidence of a misunderstanding as to the arrangement but no evidence of improper conduct as an Arbitrator since there was no common inspection and no conversation together. The Arbitrator left when it was obvious no representative of Mrs. Winkens was at home. As to the allegation that material evidence was excluded, I do not think Counsel was correct in submitting that the letter from Mr. Winkens was inadmissible because if Mr. Winkens was acting as agent for Mrs. Winkens in signing the contract, he was also acting as her agent in writing a letter. Therefore it was a letter inter parties. She could give evidence to the best of her recollection about the items mentioned in the letter. The letter did not prove the truth of the allegations made in the letter. It merely proved that particular complaints were made at that time. I do not consider the exclusion of the letter amounted to a misconduct of the proceedings. Her other allegations of not getting a fair hearing are vague and do not contain any detail necessary to ground an allegation of this kind and do not prove any misconduct of the proceedings. Neither is the fact that Counsel were briefed on side and an adjournment might have carried costs. That seems to me to be a comparatively ordinary way of dealing with a last minute request for an adjournment.
In relation to costs, the position is that the parties may agree the remuneration of the Arbitrator expressly in advance. In the absence of express agreement, an Arbitrator is ordinarily entitled to reasonable remuneration. In this case the rate per hour having been agreed, the Arbitrator would be entitled to charge at the agreed rate for a reasonable number of hours.
An Arbitrator has a lien on the award for the amount of his charges. The ordinary practice is to notify the parties of the amount of his charges as soon as the award is ready and to retain possession of the award until the charges are paid.
The High Court may on application for that purpose order that the Arbitrator deliver the award to the Applicant on payment into Court by the Applicant of the fees demanded, order taxation by the Taxing Master and payment of the sum found reasonable on i taxation to the Arbitrator and the balance if any is paid out to the Applicant. (See the Arbitration Act 1954 Section 33).
Except under these provisions there is no means of taxing or otherwise disputing the amount of fees fixed by the Arbitrator unless the amount is so unreasonable that the Court would hold the Arbitrator guilty of misconduct and set aside or remit the award on that ground. (See Ha Is bury, 3rd Edition, Volume II page 49, paragraph 107).
As far as taxation is concerned, there is a lacuna in the Act where one party pays the Arbitrator's charges, takes up the award and the other party is bound under the terms of the award to pay those charges but is dissatisfied with the amount. Taxation does not appear to be possible. But what is at issue is whether J the amount of the award is so excessive as to amount to misconduct. There is no evidence before the Court that the amount of the Arbitrator's costs is excessive. The Arbitrator did give a breakdown of how the charges were calculated and admittedly, on being asked for further particulars, changed the basis of calculation by deleting 10 hours from travelling time and adding 10 hours to award time. But there is no evidence from any competent source on behalf of Mrs. Winkens that as altered, the calculations are excessive. Whereas there is an averment on behalf of the Company which actually paid the costs that the charge are reasonable. So I do not consider there is any evidence on which I could set aside or remit the award on the grounds of an excessive award of charges to herself by the Arbitrator. The complaint that the Arbitrator failed to itemise her calculations showing how she arrived at the award figures, is without substance. Under the terms of reference, the Arbitrator was not obliged to state reasons and so was entitled to make the award in the form in which she did.
The last ground is that the award should be remitted so that Mrs. Winkens can adduce evidence to show that payment of £5000 has not been credited in the final account.
An award can be remitted if material evidence which could not with reasonable diligence have been discovered before the award was made, has since been obtained.
Mrs. Winkens exhibits a statement which does not show receipt of the cheque for £2,000 paid on the 14th of December 1978 and Mr. Duggan exhibits a final account which does not show receipt of a cheque paid on that date. Mrs. Winkens' statement shows receipt of £2,000 cash to L. Duggan on the 5th of April 1979.
Mr. Duggan's final account does not show receipt of £2,000 by L. Duggan on the 5th of April 1979, but it does show an. undated receipt of £2,000 cash after receipt of a cheque dated the 10th August 1979.
Mr. Duggan says that this £2,000 is the £2,000 cheque paid on the 14th of December 1978.
In relation to the cheque for £3,000, Mrs. Winkens said she personally made over the cheque to Mr. Duggan. Mr. Duggan says the Company never received the cheque for £3,000 which was paid on the 19th of January 1979. The photostat cheque shows that it was paid in the same branch on which it was drawn. It I may be possible to show either that it was or was not paid into the Company's account.
These are two matters on which further evidence would be required if the award was remitted and in which the credibility of witnesses is involved. The question is whether Mrs. Winkens should be permitted to do so. She says she only discovered after the arbitration that the sum of £5,000 had not been credited.
Since it is a considerable sum of money, and since the matter was never canvassed in argument before the Arbitrator, and since Mr. Winkens appears to have been more concerned in the day to day business with the Company than Mrs. Winkens, it is understandable that she did not appreciate the point at the time of arbitration. T In those circumstances I am of opinion that the award should be remitted to the Arbitrator under section 36 to determine whether credit was given in the final account for those two particular cheques of £2,000 and £3,000.
The cheque for £14 7 was disputed in evidence before the Arbitrator and must have been taken into account by her in reaching her award so that amount is no longer in issue. As to costs of this application, I adjourn the question until after the Arbitrator has reached her award.
As to the first action, where the Company is Plaintiff, the Company is entitled to judgment for the amount of the award with interest from the date of the award under section 34 of the 1954 Act, with a stay on the payment of £5,000 part thereof and interest thereon until after the Arbitrator has made her award. Depending on her award, the stay will either be lifted or the amount modified.