The High Court has lifted a stay on proceedings brought by Gerald Jephson and Pamela Jephson against Aviva Insurance Ireland DAC, finding that the insurer did not conduct the arbitration in a “timely and efficient fashion”. The underlying dispute over insurance cover for a damaged Waterford property has not been decided.
In a judgment delivered on 21 May 2024, Mr Justice Mark Sanfey ruled on Gerald Jephson’s application to lift the stay imposed in January 2020 while the dispute went to arbitration. The court had allowed an application if there was non-compliance with an undertaking by Aviva’s solicitor, Michael Corrigan, that the insurer would participate in the arbitration in a timely and efficient manner.
The claimants’ case is that the estate of Robert C. Jephson held an Aviva policy covering damage caused by subsidence, landslip or related ground movement. They allege a section of cliff beneath the family’s holiday property, known as Yellow House in Dunmore East, collapsed in January 2010, undermining part of its foundation. They say Aviva wrongly declined the claim in 2017, maintaining that the applicable HomePak policy excluded that type of damage. Aviva’s defence disputes the claimed coverage and says the HomePak wording applied. Those insurance issues were not determined in this application.
The judge recounted delays in exchanging discovery, including that Aviva initially provided an unsworn and incomplete draft affidavit. Aviva later said it had furnished a sworn affidavit and the documents sought. The parties also disagreed over whether the arbitration should hear the policy question as a preliminary issue or determine all issues together. Aviva accepted there had been delay but argued that disputes about the arbitration’s conduct should first have been brought to the arbitrator.
Justice Sanfey held that the parties’ agreement and the court’s 2020 order expressly allowed an application to lift the stay for any non-compliance with the undertaking. He found the delays justified Gerald Jephson in applying to court and rejected the argument that he first had to seek directions from the arbitrator. The court was therefore not required to find that the arbitration agreement was null and void, inoperative or incapable of being performed.
The judge ordered the stay lifted. He directed the parties to confer on steps to progress the High Court proceedings and said any application by Aviva for a preliminary issue should be made without further delay. The case was listed for mention on 4 June 2024 to address next steps and costs; the judge indicated that the claimant should receive the costs of this application. The judgment did not decide the insurance claim or make a final determination of the arbitration’s status.