The Court of Appeal has struck out Dunnes Stores’ proceedings over the completion of Point Square in Dublin, ruling that the dispute should be decided through the expert determination process agreed by the parties.
In a judgment delivered on 23 July 2018, the court allowed an appeal by Paul McCann, Stephen Tennant and Point Village Development Limited. It set aside the High Court’s refusal to stay the proceedings and struck them out as an abuse of process. The court did not decide whether Point Square met the contractual standard or whether the €3 million should be released.
The dispute arose under a 2008 development agreement concerning works at Point Village, North Wall Quay. The agreement required the design and specification for Point Square to meet a first-class standard appropriate to a prestigious shopping centre, measured against named developments. After the parties settled earlier litigation, Dunnes was to release €3 million, plus accrued interest, once the square was certified as completed in accordance with the agreement.
Point Village’s architect issued certificates in 2013 and 2014. Dunnes disputed the later certificate and withheld the money. The agreement provided for disputes to be referred to an independent architect acting as an expert, whose decision would be final and binding. Anthony Reddy was nominated to determine whether Point Square had been completed in accordance with the agreement.
Both sides submitted material to Mr Reddy. Dunnes argued that Point Square fell short of the contractual standard. It then contended that interpreting the relevant clause was a legal question for the courts, and brought proceedings seeking declarations about compliance and how the clause should be interpreted. The High Court accepted that argument and refused Point Village’s application to halt the case. The expert had not made a determination; the parties had effectively paused that process while the litigation proceeded.
Giving judgment, Mr Justice Gerard Hogan said an expert appointed to decide a dispute was, in principle, authorised to address issues—including questions of law and contractual interpretation—that needed to be resolved to decide it. He said there was no basis to assume the expert would exceed his mandate. The court left open the possibility of judicial intervention in special circumstances, such as fraud or a significant misunderstanding of the expert’s jurisdiction.
Although Point Village’s application was framed as a request for a stay, the Court of Appeal treated it as an application to strike out the claim. It concluded the proceedings had no realistic prospect of success and had undermined the agreed process for a speedy, final decision. The order struck out Dunnes’ proceedings; it did not resolve the underlying completion dispute or the payment claim.