The decision of the High Court in the recent case of Brenton Dewick (a Minor) v Falcon Group Overseas Limited (High Court, Johnson J, October 22 2001 - unwritten and unreported) calls into question the application of arbitration clauses in Ireland where the claimant is a child.

The plaintiff was a six-year-old boy who suffered injuries when he fell through a plate glass window in an apartment complex while on holidays with his parents in Spain. Proceedings were instituted against the defendant for breach of contract and negligence. The claim was based on alleged representations made by the defendant about the fitness and suitability for young children of the apartments where the accident happened.

The defendant applied to the court for a stay on the court proceedings under Section 5 of the Arbitration Act 1980, arguing that the original holiday booking form signed by the child's mother provided for any disputes or claims arising in connection with the holiday to be determined in the absence of agreement by arbitration.

Section 5 of the act provides that if any party to an arbitration agreement commences legal proceedings against another party to the agreement in respect of any matter agreed to be referred to arbitration, any party to those proceedings may - at any time after an appearance has been entered, but before delivering any pleadings or taking any other steps in the proceedings - apply to the court for the proceedings to be stayed. The court is bound under Section 5 to grant the stay unless it is satisfied that the arbitration agreement is null and void, inoperative or incapable or being performed, or that there is not in fact any dispute between the parties with regard to the matter agreed to be referred.

The court had to consider the defendant's application in the context of Order 22 Rule 10 of the Rules of the Superior Courts 1986. This provides that in any matter in which money or damages are claimed by or on behalf of an infant or a person of unsound mind, no settlement, compromise, payment or acceptance of money paid into court shall be valid as regards the claims of that infant or person of unsound mind without the court's approval. The import of Order 22 Rule 10 is such that, in effect, no proceedings where a child sues for damages can produce a result which is not ultimately vetted or approved by the court.

Justice Johnson, in an ex tempore judgment, refused to grant the stay sought by the defendant on the grounds that while Section 5 of the 1980 act allows for the ouster of the court's jurisdiction where the parties have agreed to refer the dispute to arbitration, it makes no provision and provides no basis to oust the jurisdiction of the court in cases involving children conferred by Order 22 Rule 10.

Public policy in Ireland dictates that children's interests should be given special protection by the law and Johnson expressed concern that the effect of the arbitration clause was to restrict a child's right of access to the courts. Accordingly, he ruled that notwithstanding the provisions of Section 5 of the 1980 act, the plaintiff's claim should be determined by the courts and not by arbitration.

For further information on this topic please contact Michael Carrigan at Eugene F Collins by telephone (+353 1 202 6463) or by fax (+353 1 676 5200) or by email ([email protected]).