The Gazette 1991

m a r c h 1991

g a z e t t e

arbitration scheme specifically state "parties to a dispute are en- couraged not to seek legal repre- sentation for such hearings, though they may do so if they wish". On Tuesday 11th December 1990 Carroll J in the High Court, delivered an ex tempore judgment in the matter of McCarthy & Ors. -v- Joe Walsh Tours Limited and held, inter alia, that the provisions of The Sale of Goods and Supply of Services Act 1980 applied to the contract the subject matter of the dispute, and that as Section 39 of that Act implies: a. that the defendant has the necessary skill to render the service b. that the defendant would supply the service with due skill care and diligence. and this implied term has no limitation on its liability. Furthermore as Section 40 of the Statute only allows an implied term to be varied or negatived by an ex- press term of the Contract, inter alia, provided that where the recipient of the service deals as a consumer it must be shown that the express term is both fair and reasonable and has been specifically brought to the attention of the consumer. As the I.T.A.A. Scheme itself limits liability to £5,000 for any

claim and excludes personal injuries, Carroll J held that it is a provision restricting the liability of the supplier for a breach of an implied term under the statute, and that as the provision restricting the liability was not contained in the general conditions of the contract, and accepted the averment of the Plaintiff that the purported restrict- ion was not b r ought to his attention, the Arbitrator could not apply the scheme as drawn up and went on to hold that the Scheme was inoperative and incapable of being performed and dismissed the appeal by the Defendant/Appellant. This judgment was accepted by the Defendant shortly thereafter in the similar case of Whitfield -v- Joe Walsh Tours Limited, when they con- sented to an Order being made on similar terms as in McCarthy -v- J.W.T. Fortunately the Plaintiffs in both actions did not accept the Irish Travel Agents Association's re- commendation not to seek legal representation. Yours faithfully, Raymond St. J. O'Neill, Raymond St. J. O'Neill & Company, Courthouse Chambers, 27/29 Washington Street, Cork.

Correspondence Editor, Law Society Gazette, Law Society, Blackhall Place, Dublin 7.

17th December 1990 Re: Irish Travel Agents Association Arbitration Scheme Dear Sir, Many colleagues will have ex- perienced the difficulties which arise when an unfortunate con- sumer, who has travelled abroad, and has found his holiday to be disrupted and has subsequently sought compensation from the Travel Agent, only to find that the travel agent seeks, in the first instance, to have the matter referred to arbitration, pursuant to the terms of the booking contract, and secondly that the arbitration is held in accordance with the terms as set out in the Irish Travel Agents Association Arbitration Scheme. This scheme, inter alia, seeks to limit the liability of the Defendant, to a sum of not more than £5,000 and f u r t he rmo re spec i f i ca l ly excludes any claim for personal injuries. In addition the explanatory note accompanying the rules of the

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