The High Court set aside an arbitration award of €156,369.75 to James Connors after finding that the arbitrator acted unfairly by refusing FBD Insurance a two-day adjournment and then hearing the claim without the insurer.
The award, made on 12 January 2011, concerned an insurance claim for a house and contents destroyed by fire in Kilcullen, County Kildare, on 25 November 2009. It also provided for interest at 8% a year from 25 April 2010 until payment, and costs in Connors’s favour.
FBD had arranged to defend the claim at a hearing originally scheduled for 13 December 2010. The arbitrator moved it by one day, to 14 December, less than a week beforehand. FBD then sought a two-day adjournment, saying its loss adjuster, Maurice Cunningham, could not attend and was needed to assist with the evidence. FBD offered to cover Connors’s reasonable extra air fare if the delay affected his planned return to Australia.
The arbitrator offered to hear Cunningham later, but said he wanted to proceed with Connors’s case that day. FBD’s counsel said the insurer could not proceed and withdrew with FBD’s representatives. The arbitration continued in their absence, and the arbitrator made the award.
Justice Laffoy said the court had to accept that Cunningham’s unavailability was the difficulty behind FBD’s adjournment request: the solicitor who swore FBD’s affidavit had not been cross-examined. The judge said Connors had a legitimate interest in an expeditious hearing, particularly because he had travelled from Australia, but a two-day delay would not have caused unreasonable delay or extra expense if FBD’s offer were accepted. FBD, meanwhile, had a legitimate interest in presenting its defence with the assistance of the expert it considered necessary.
The court held that the combined decision to refuse the short adjournment and proceed without FBD meant the dispute was decided without the insurer being heard. The judge said the conclusion rested on Cunningham’s unavailability, not on the separate issue of tax returns sought by FBD. She also noted that the arbitrator had expressed concern that proceeding without one side would be contrary to natural justice before deciding to continue.
The award was set aside. The court said it would remit the dispute to the arbitrator appointed by the court only if both parties agreed; otherwise, they would return to the arbitration agreement. Connors’s application to enforce the award was dismissed. The arbitrator was discharged as a party to FBD’s application, with his costs against FBD on an indemnity basis.