The High Court has dismissed Hymany (Pontoon) Ltd’s application to set aside an arbitration award arising from construction work at the Pontoon Bridge Hotel in Foxford, Co Mayo. The award directed the company to pay Galkil Ltd €1,021,684.13 including VAT and dismissed Hymany’s counterclaim in full.
The application was made under section 38 of the Arbitration Act 1954 and the court’s common law jurisdiction. Hymany alleged that the arbitrator had acted unfairly, failed to address disputed issues and made errors of fact and law. The court stressed that it was not hearing an appeal on the merits of the arbitration.
The dispute arose from a 2004 contract for construction and extension work at the hotel. The contractor left the site in October 2005 after Hymany sent notices purporting to terminate its employment. The parties later arbitrated their dispute over the contractor’s final account and Hymany’s counterclaim. The arbitrator’s award, made in March 2010 and furnished to the parties in May, allowed part of Galkil’s claim and rejected Hymany’s €2,037,570.38 counterclaim.
Hymany’s counterclaim included €1.325 million in liquidated damages for delay and €712,570.38 for the cost of completing the work and remedying alleged defects. The arbitrator rejected the delay claim because the contract required an architect’s certificate, with simultaneous notice to both parties, and the evidence before him did not establish that this requirement had been met. He also rejected the completion-cost claim, citing concerns about how it had been quantified and whether the contractual termination procedure had been followed.
Justice Laffoy found that many of Hymany’s complaints asked the court to reconsider factual assessments that belonged to the arbitrator. The record before the High Court included conflicting affidavits and no transcript or agreed note of the arbitration hearing, limiting the court’s ability to review what evidence had been presented. The court also concluded that the arbitrator had addressed the key liability issues, even where the award did not use that terminology.
The judge said the arbitrator’s criticism of an employer witness for relying on notes prepared the previous evening was unjustified, but it did not taint the award substantially. The court found no misconduct or sufficiently fundamental error to justify setting the award aside. The order was to dismiss Hymany’s application. A separate application to enforce the award was pending, and the court did not address it in this judgment.