The High Court has ordered property arbitrators to refer questions of law about Electricity Supply Board compensation offers, including whether an arbitrator may limit a claimant’s costs when an offer is accepted after a reasonable period. The court did not decide those questions; it directed that cases be stated for its opinion.
In the judicial review proceedings brought by the ESB in the Boyle matter, Mr Justice Quinn quashed an arbitrator’s 16 February 2018 refusal to state a case. The arbitrator had treated the validity of an ESB offer as a question of fact. The court held that whether the terms of an offer meet the statutory test for an unconditional offer is a question of law. It directed the arbitrator to state whether the ESB’s letter of 21 June 2017 was a valid unconditional offer under the Acquisition of Land (Assessment of Compensation) Act 1919. The precise form of the question remained to be settled after hearing the ESB.
The judgment concerned three linked proceedings about offers made in compensation arbitrations for electricity wayleaves. Under the 1919 Act, an arbitrator’s costs discretion is subject to a rule that can require a claimant to pay the acquiring authority’s post-offer costs if an unconditional offer is not accepted and the award does not exceed it.
In the Paul Good case, the court ordered the arbitrator to state questions about whether the ESB’s February and June 2017 letters to Dermot Kelleher were valid unconditional offers. It also found a legal question arose about whether an accepted offer may be accepted at any time before an award, or whether a reasonable acceptance period applies. The court said the question’s final wording would need further consideration.
The third case, brought by Rossmore Properties Limited, concerned an offer of €25,007, accepted before the scheduled arbitration hearing. The arbitrator’s draft award treated the offer as one that should have been accepted by 13 November 2017 and allocated costs on that basis. The High Court identified the central legal question as whether an arbitrator may set a reasonable acceptance date and, on that basis, limit the claimant’s costs and award the respondent costs incurred afterwards.
The court directed that this question be stated, preferring a concise formulation to the nine questions Rossmore had proposed. It did not direct the arbitrator to state the other questions as framed, finding them unnecessary, too broad or dependent on disputed characterisations. The court also recorded that the ESB accepted a typographical error in the draft award and was not maintaining the disputed award of its own pre-reference costs.
The judgment therefore concerns referral of legal issues, not a final ruling on the validity of the offers or the costs payable in the Rossmore arbitration. The court said the wording of the orders still required further consideration with the parties.