227 / 294
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.]
Custody of three children awarded to mother. Former
Supreme Court Order varied.
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
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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