The High Court has refused an application by Patrick O’Leary, trading as O’Leary Lissarda, to set aside an arbitral award in a dispute with John Ryan over a vehicle sale and the recovery of VAT.
In a judgment delivered on 18 December 2015, Mr Justice Brian J. McGovern said O’Leary had not established any of the limited grounds available under Article 34 of the UNCITRAL Model Law. The application sought to set aside an award made on 16 January 2015. The judge stressed that an Article 34 application is a review of specified grounds, not an appeal on the merits.
O’Leary argued that the arbitrator had failed to deal with a request for discovery. At the hearing, however, his counsel accepted that the Model Law did not provide a power to order discovery and that discovery had not been raised before the arbitrator. The judge said a letter from O’Leary’s solicitors did not amount to an application for discovery and rejected that challenge.
A further challenge concerned evidence about VAT and vehicle registration tax refunds Ryan had obtained for earlier vehicles bought under the Disabled Drivers Scheme. The judge said it was for the arbitrator to assess that evidence and its weight. O’Leary had not shown a basis under Article 34 to set the award aside on that ground.
The court also rejected a complaint about the arbitrator’s treatment of settlement offers. The arbitrator had addressed the offers and their significance, and the judge said the complaint amounted to an impermissible attempt to appeal the decision. Even if the arbitrator had been factually wrong about whether an explanation of an offer was put to Ryan during the hearing, the judge said, that would not change the position.
The final challenge alleged that the arbitrator had not made an award on O’Leary’s counterclaim. The judge said any omission did not make the award incomplete in a way that justified setting it aside. The applicant could have asked the arbitrator for an additional award under Article 33 within 30 days of receiving the award, but took no such step. Instead, the challenge was brought on the last day of the three-month period for seeking to set the award aside.
The judge found no breach of natural justice sufficient to justify setting aside the award, and said it dealt with matters within the scope of the arbitration. He refused the relief sought. The judgment concerns the application to set aside the award; it does not rehear the underlying dispute on its merits.