The Gazette 1972

The arbitration proceedings were held in November 1966. The arbitrator acted with great care, but the net result of his award was that the defendant contractors had received £41.50 more than the plaintiffs had allowed in the final bill of measurement. As regards costs, the arbitrator was of opinion that the plaintiffs had won on one issue, and that the defendant con- tractors had won on the other issue. He directed on 7th February 1967 that "each party shall pay the costs of its own professional advice and witnesses. The arbi- tration charges of £313.75 shall be divided in the following manner : £168.75 to be paid by the claimant. £145 to be paid by the respondent." There had been no preliminary discussion as to the award for costs. The arbitrator considered that the treatment of hard wood was deemed to be "polishing" rather than "paint- ing", and that the plaintiff had delayed unduly in producing a bill of measurements. In Feb. 1967 the plaintiffs issued a Special Award naming the contractors as defendants in which they claimed that the award of costs made by the arbitrator should be set aside on the grounds (1) that it was bad on its face and (2) because the arbitrator "miscon- ducted" himself in directing the plaintiffs to pay £145 costs. The contractors did not appear. In October 1967 Kenny J. heard the summons, and considered that the plaintiffs had succeeded in the two parts, and that the arbitrator should have awarded the costs to the successful plaintiff; the arbitrator had misconducted himself only to the extent that he had not exercised a proper judicial discretion. In September 1969 the arbi- rator applied by motion to have the order of October 1967 set aside on the grounds that the summons which led to the order was not served on him. While the arbitrator did nothing blameworthy yet he was injuri- ously affected by the order. Kenny J. stressed that in litigation, the Court must decide the issues on the contentions of the parties, and is not entitled to give judgment on grounds which were not mentioned. The award must accordingly be set aside on the grounds that the arbitrator did not hear the plaintiffs before deciding that they had delayed the proceedings. As the award of costs of its own professional advice and wit- nesses was made, this award is void for ambiguity, as this expression was not properly explained. Kenny J. suggests, in order to reach a settlement, that the power of the original arbitrator should be removed, and that another arbitrator should be substituted for him. [re Arbitration Act, 1954; Lynam & Sons v Leonard and Donnelly Ltd. and MacKenna; Kenny J.; unre- ported; 31st May 1972.] The husband and wife in this case are now separated. By order of 20th January 1969 Kenny J. awarded the custody of the eldest boy then aged 9, and of the girl, then aged 7, to the father, and the mother was given custody of the youngest boy, then aged 5. This order was affirmed by the Supreme Court on 13th July 1970 after a hearing which lasted nineteen days. The hus- band alleged that he saw misconduct taking place between the wife and another man in her house in January 1972. An inquiry agent alleged that similar incidents had taken place five times in March and April 1972. On the seventeenth day of the hearing, Kenny J. informed counsel that he did not require any further evidence as he was satisfied beyond doubt that Custody of three children awarded to mother. Former Supreme Court Order varied.

the testimony on which these charges were based was false, and that he was convinced that the wife was not guilty of adultery. On June 27th the counsel for the husband stated that as he was satisfied that the evid- ence of the inquiry agent was not to be believed, he wished to withdraw a motion for custody of the youngest son based on the wife's alleged misconduct. Kenny J. found that the husband was guilty of a satanic hatred for his wife. He had for instance during the course of the hearing written to his wife's father complaining that he had been compelled to cite her before the Court on account of her conduct. Furthermore the inquiry agent got the eldest boy to place secret microphones in his mother's house in order to obtain alleged evidence of adultery. The microphones were constructed in such a way that, if a radio set was wired into the frequency of the microphone within one mile, the conversation in the room could be heard. The wife had given truthful evidence even when she had to make admissions. The husband had corrupted the two elder children to spy on their mother and had told them about the mother's alleged adultery. The harm which hád been done to the children was beyond description. It is a matter of urgency that the two elder children should be placed in the custody of the wife, which is to take place on the day following this judgment. The alleged conditions for the children's welfare in the husband's residence no longer existed. It would be more suitable to send the eldest boy to boarding school in September 1972; the girl will go to a local day school for the present, but is to go to boarding school in September 1973; the youn- ger boy is also to remain in a local day school for the present. For the present, the husband will be allowed to see the children for one Saturday in July and August, but he will have to apply to the Court to arrange future visits. Order of the Supreme Court varied by granting custody of the three children to the wife. [P.B. v N.F.B.; Kenny J.; unreported; 4th July 1972.]

NOT ICE An original lease dated the 12th June 1827 made between Mathew Lynam and Patrick Marlay relating to the lands in Tallaght containing 88 Irish acres gran- ted for a period of twenty-one years from the 25th March 1827 was left in the photocopying room in Solicitors Buildings, Four Courts. Will the solicitor or his assistant who left this document please call to Mr. William O'Reilly to collect it.

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