The High Court has refused an application to send a dispute over construction work at a Dublin home to arbitration, finding that the applicants had not established an arbitration agreement with the homeowners.
In an ex tempore judgment delivered on 25 March 2021, Mr Justice David Barniville refused an application under Article 8(1) of the UNCITRAL Model Law on International Commercial Arbitration. The application was brought by Mark Doyle, Mark Doyle Building Contractors Limited and Ballinagam Upper Consulting Limited, trading as Mark Doyle Building Contractors. They sought referral of the dispute between the plaintiffs and the building company to arbitration, with a stay of the court proceedings.
The applicants relied on the arbitration clause in the RIAI “Blue Form” contract terms. The homeowners, Patrick and Ellen Coen, disputed that they had agreed to those terms. There was no signed contract, and the judge made no finding on the parties’ precise contractual relationship or on the underlying claims about defective work, breach of contract, negligence or misrepresentation.
The evidence included emails in which Patrick Coen sought a draft contract and later said the homeowners needed to review the RIAI form and that some provisions might need to be changed. After the applicants rejected a draft contract prepared by Coen, they said an architect would advise on an appropriate contract. The judge found no evidence that this advice was provided or that the contract terms were clarified before work began in May 2016.
The judge accepted that Doyle may have proposed the RIAI terms, but concluded that the homeowners had not agreed to them without significant changes. The applicants had not accepted the homeowners’ alternative draft, which included a conciliation clause but no arbitration agreement. The judge also rejected reliance on construction-industry custom and practice on these facts, noting that the homeowners were not in the industry and had expressed disagreement about the proposed terms.
Under Article 8(1), the applicants had to establish that an arbitration agreement existed. The judge was not satisfied they had met that burden, whether for the company or any of the applicants. He therefore refused the application. The ruling determined the forum application; it did not resolve the construction claims. The parties had agreed to mediation, and arrangements for appointing a mediator were at an advanced stage when the application was heard.