The High Court has refused Malcolm Marshall’s application to set aside arbitration awards arising from his claim against tour organiser Capital Holdings Limited, trading as Sunworld, over an injury he said he suffered during a holiday in Gran Canaria.
Mr Justice Roderick Murphy ruled on 21 July 2006 that Marshall was not entitled to have the claim retried. The court found no evidence that the arbitrator had misconducted himself or the proceedings, and said the plaintiff had not established grounds to set aside either award.
Marshall alleged that he fell on unguarded and unmarked steps in accommodation allocated to him at the Paradiso Apartments, Playa del Ingles, during a holiday booked for 24 December 1999 to 8 January 2000. The claim was referred to arbitration under the holiday contract. After a hearing on 12 September 2001, the arbitrator ruled that the claim had failed. A later award ordered Marshall to pay the defendant’s costs of the arbitration, which were taxed at €9,690.13.
Marshall brought a High Court application by special summons on 25 June 2004, seeking to set aside both awards or have the case retried. He also sought general declarations about consumer arbitration clauses. The court noted that the application came more than two and a half years after the awards, although an extension of time had been allowed. It described the delay as inordinate and found, on the balance of probabilities, that the proceedings were initiated to delay or avoid paying the taxed costs. That did not excuse the delay.
The judge found that Marshall had acquiesced in the booking conditions and had been represented by a solicitor and experienced counsel during the arbitration. The contract’s terms allowed legal proceedings as well as arbitration, the court said, and Marshall had not raised an objection to the procedure during the arbitration. It also rejected his general consumer-protection claims, finding he had no standing to seek relief on behalf of the public and that the contract did not exclude litigation.
The court said an arbitrator’s award is generally final, with no appeal on the merits, though an award may be set aside for misconduct or improper procurement. It found no evidence that the arbitrator ignored the law, acted with bias, refused relevant evidence or denied Marshall a fair opportunity to make submissions. The parties had agreed that the arbitrator need not give reasons.
The court refused the requested orders to set aside the awards and have the matter retried. The judgment does not determine the underlying injury claim afresh.