Property Arbitrator Refusal to State Case to the High Court

The ESB has successfully challenged a property arbitrator's refusal to state a case to the High Court in a claim for compensation.

The property arbitrator was considering a claim by a landowner against the ESB for compensation as a result of the compulsory purchase order (CPO) of his land.

The ESB had previously made a payment to the landowner for his consent to the laying of electricity lines across his lands. The ESB requested that the property arbitrator state a case to the High Court on a point of law – i.e, whether this previous payment should be taken into account by the property arbitrator when calculating the compensation payable to the landowner.

The property arbitrator refused to state a case because he did not believe that the issue was relevant to the claim.

Judicial Review on Point of Law

The High Court found that decisions of a property arbitrator may be challenged by way of judicial review. The High Court decided that the property arbitrator was wrong to refuse to state the case and that the issue could have a significant impact on the amount of money paid out of public funds in compensation by the ESB.

Requirements for a Case Stated

The Court set out the requirements that must be satisfied before an arbitrator should state a case on a point of law, ie:

  1. The point of law should be real and substantial and open to serious argument and appropriate for a decision by a court of law, as distinct from a point which is dependent on the special expertise of the arbitrator;
  2. The point of law should be clear cut and capable of being accurately stated as a point of law – as distinct from the dressing up of a matter of fact as if it were a point of law;
  3. The point of law should be of such importance that the resolution of it is necessary for the proper determination of the case – as distinct from a side issue of little importance.

The Court found that if these requirements are satisfied, the arbitrator should state a case. The Court found that the point of law in this case satisfied the requirements.

Application of the Arbitration Act 2010

The Court also commented on the applicability of the Arbitration Act 2010 (which incorporates the UNCITRAL Model Law) to property arbitration proceedings. This Act provides that no court shall intervene in matters governed by the Model Law unless provided for within the Model Law.

However, the Arbitration Act 2010 only applies where it is not inconsistent with pre-existing statutory regimes. As in this case the entitlement of the High Court to intervene in a property arbitration is set out in other legislation, the Model Law did not apply.

Key Takeaway

Decisions of a property arbitrator in CPO cases may be challenged by way of judicial review and the Court in this case gave guidance on the requirements that should be met before an arbitrator should state a case on a point of law to the High Court.