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Case Details

Case Details
National ID [2006] IEHC 271
Member State Ireland
Common Name Marshall v Capital Holdings
Decision type Other
Decision date 26/07/2006
Court High Court
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, Article 3, 3. Unfair Contract Terms Directive, ANNEX I, 1.

1. A non-exclusive arbitration clause which is covered by legal provision will not be unfair under the European Communities (Unfair Terms in Consumer Contracts) Regula-tions, 1995.
In December 1999, the plaintiff went on a holiday, booked with the defendant tpour ope-rator, in Gran Canaria. The agreement with the defendant contained a condition that dis-putes be referred to arbitration under the Chartered Institute of Arbitrators, Irish Branch scheme. While on holiday, the plaintiff claimed to have sustained severe personal inju-ries, inconvenience and expense following a fall due to “unguarded and unmarked steps” in his holiday accommodation.

Following a letter of complaint from the plaintiff, an arbitrator was appointed and the plaintiff, as claimant in the reference, was represented by a solicitor and counsel.
By interim award, in September 2001, the arbitrator determined that the plaintiff’s claim had failed. A final award, in November 2001, was made whereby the arbitrator awarded and determined that the respondent (the defendant herein) recover from the claimant (the plaintiff herein) the costs of the reference and award, a sum of €9,690.13.

In June 2004, the plaintiff, in person, applied to the High Court for an order to set aside both the interim and final awards, and/or to grant leave to have the matter re-tried in a court of competent jurisdiction.

The plaintiff relied, inter alia, upon the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (S.I. No. 27/1995), claiming that the arbitration clause was unfair with reference to term (q) of the Schedule.
The High Court noted that the term at (q) in the Schedule to the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 deals with arbitration not cove-red by legal provisions. However, this was not the case with the arbitration proceedings in question.
Further, term (q) requires the consumer to take dispute exclusively to arbitration not co-vered by legal provisions. The Court found that the terms of the contract, when read to-gether, did not exclude litigation.
The court therefore refused the order sought.
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