AN ARBITRATOR who found in favour of a contractor who walked away from a multi-million euro refurbishment project at Eyre Square in June 2005, was guilty of serious misconduct and had a tendency to fall asleep during hearings, the Commercial Court was told yesterday.
Eoin McCullough SC for Galway City Council told Mr Justice Bryan McMahon he was not seeking to have the arbitrator’s initial finding set aside, but to remove arbitrator Geoffrey Hawker “for the future”.
Mr McCullough said Mr Hawker, who had yet to conclude the arbitration between Galway City Council and Samuel Kingston Construction Ltd, had been guilty of serious misconduct, had made errors in law and “certainly had a tendency to fall asleep from time to time”.
Mr McCullough, instructed by AL Goodbody, said a monstrous injustice had been done to the local authority when Samuel Kingston Construction withdrew its workers, plant and machinery from the Eyre Square project in June 2005. The council had “enormous difficulty” in getting a contractor to complete the project and in dealing with the subsequent “enormous negative publicity”.
This difficulty had been compounded by the arbitration process conducted by Mr Hawker with which the council and the contractor had engaged, he said. It was not unreasonable to expect the arbitrator would make his decisions based on matters of law and would be factually accurate, but this had not been the case.
Mr McCullough said Mr Hawker had published an explanatory document with his initial findings, which was subsequently amended because it was clear he had not understood the issues clearly.
He also claimed an expert witness for the council had not been allowed to give verbal testimony and that Mr Hawker had made unsolicited and inappropriate phone calls to the parties, before asking the contractor’s solicitors to represent him personally.
Mr McCullough said he accepted that “as a general principle”, the courts were reluctant to interfere in the conduct of an arbitration, but he believed there were grounds of such serious nature as to warrant such interference.
It could not reasonably be expected his clients would have sufficient confidence in Mr Hawker concluding his arbitration and assessing damages. In addition, any future litigants had a right to go to arbitration and expect to have it conducted with regard for the law and in fair manner, he argued.
However, John Trainor SC for Samuel Kingston said there was no basis for removing the arbitrator, as no misconduct affected anything he had done to date. There was simply “no jurisdiction” to remove the arbitrator.
Mr Trainor said it had appeared to representatives of both sides at the arbitration hearing that Mr Hawker might have been going to sleep and it had been agreed that should it be necessary, both sides would go to Mr Hawker and ask if there was a problem. However, he said no approach had been made and the only assumption possible was that it had been deemed not necessary.
Mr Trainor also said Mr Hawker had access to transcripts and written evidence and while the hearing room had been a bit stuffy, “all the evidence had been of a man applying himself to the task”.
Mr Trainor said the complaints did not stand up, and simply producing a number of complaints in the hope that a “shotgun effect” would make them substantial, did not amount to gross misconduct.
Mr Justice McMahon reserved his judgment.
