O'Callaghan v O'Callaghan and Ors

APPROVED [2026] IEHC 254 THE HIGH COURT COMMERCIAL Record No: 2025/3994 P Between: NOEL O’CALLAGHAN Plaintiff -And- PAUL O’CALLAGHAN, CHARLES O’CALLAGHAN, SAIRA COMPANY DUBLIN UNLIMITED COMPANY and SHERBOROUGH DEVELOPMENT COMPANY UNLIMITED COMPANY Defendants JUDGMENT of Mr Justice Rory Mulcahy delivered on 28 April 2026 Introduction 1. In 2016, the plaintiff transferred his equity interest in the third defendant (“Saira” or “the Company”) to his three sons, the first two defendants and their brother, Bryan O’Callaghan. He retained a shareholding in Saira with voting rights, but no equity interest. Saira is the holding company of the O’Callaghan Collection, a group of five hotels. Saira also owns a stud farm, Mountarmstrong Stud, through its wholly owned subsidiary, the fourth defendant (“Sherborough”) and approximately one hundred rental apartments. 2. Following the subsequent transfer of Bryan O’Callaghan’s shares to the first and second defendants, the plaintiff and first three defendants executed a shareholders’ agreement (“the 1 Shareholders’ Agreement”) the purpose of which, according to the recitals to the agreement, was “to regulate the future conduct of the business of the Company and the Shareholders’ relationship as the holders of the entire issued share capital of the Company.” 3. The Shareholders’ Agreement contains an arbitration agreement (“the arbitration agreement”) which provides that “[a]ny dispute or difference arising out of or in connection with this Agreement shall be referred for full and final settlement to arbitration under the provisions of the Arbitration Act 2010…” 4. In a development which prompted the plaintiff’s counsel to recall Goneril’s criticism of King Lear (“Idle old man that still would manage those authorities that he hath given away!”), disputes have arisen between the plaintiff and his two sons regarding control of Saira, with the plaintiffs’ sons resisting their father’s assertion that he retained the right to control the Company. Notwithstanding the arbitration agreement (and an earlier reliance on same by him), the plaintiff issued these proceedings seeking various reliefs. 5. The defendants, in response, issued the motion the subject of this judgment, seeking a stay on these proceedings pursuant to Article 8(1) of the UNCITRAL Model Law (“the Model Law”) and an order referring all disputes and differences between the parties to arbitration. The plaintiff resists the application on two grounds. First, he argues that the Shareholders’ Agreement was induced by misrepresentation and is void and of no effect. He contends, therefore, that there is no valid arbitration agreement binding the parties. Second, he claims that, in any event, the disputes between the parties do not fall within the scope of the arbitration agreement. Other applications 6. There were three further applications before the court at the hearing of the motion to refer this dispute to arbitration (“the Article 8 application”). The first of these was the plaintiff’s application to amend his claim for the purpose of including a claim that the Shareholder’s Agreement is void and/or voidable for misrepresentation (“the amendment application”). It was agreed that this application should await a decision on the Article 8 application, which will decide the proper forum for this dispute. If the proceedings remain before the High Court, then the amendment application can be dealt with in early course. If, 2 however, the proceedings are referred to arbitration, it will be superfluous. The defendant accepted, however, that the Article 8 application would have to be determined on the basis that the plaintiff contends that the Shareholders’ Agreement is void. 7. The second application was the plaintiff’s application for leave to cross-examine the defendants’ deponents on the Article 8 application, Paul O’Callaghan and Eoin Likely (“the cross-examination application”). The defendants issued a corresponding motion in response, reserving the right to cross-examine the plaintiff on his affidavits. I proposed that the possibility of cross-examination be left over, and re-visited, if necessary, if it appeared, when seeking to decide the Article 8 application, that there was potential for cross- examination to be decisive in determining that application. The parties agreed to that proposal. Factual background 8. As indicated above, these proceedings principally concern control of Saira, the holding company for the O’Callaghan Collection group of hotels and other properties. Saira was incorporated in 1982 and the business was built up by the plaintiff, Noel O’Callaghan, over the next thirty years. 9. In 2009, the plaintiff transferred 60% of the equity in Saira to his three sons, the first two defendants, Paul and Charles O’Callaghan, and their brother Bryan O’Callaghan. The plaintiff retained all voting rights in the Company. He thus remained in overall control of the Company. 10. In December 2015, the plaintiff transferred the balance of the equity shares in Saira to his three sons, together with three quarters of the voting shares. In order to avail of Capital Gains Tax (CGT) relief, this transfer was required to take place before 18 December 2015. 11. It seems that as part of that transaction, the plaintiff’s three sons each executed undated share transfer forms transferring their ‘E’ shares in Saira to the plaintiff. They also executed undated proxy forms, appointing the plaintiff as their proxy in relation to the ‘E’ shares. The plaintiff contends that the purpose of the proxies and the share transfer forms was to enable him to assert control of Saira should he wish to do so, by ensuring that he retained the 3 capacity to control the voting shares in the company. The legal effect of these share transfer forms and proxies is disputed between the parties. The plaintiff’s case is that they were and remain effective. The defendants’ position is that they were never effective and, in any event, ceased to be effective on execution of the Shareholders’ Agreement. 12. The parties, including Bryan O’Callaghan, also sought to conclude a shareholders’ agreement in 2016, but for reasons which are disputed, no such agreement was ever executed. The plaintiff, however, contends that the following matters were agreed as part of what he refers to as “the 2016 Agreement”: • the plaintiff would be paid an annual salary of €500,000, net of tax, for the remainder of his natural life; • Saira would discharge the plaintiff’s credit card expenses for the remainder of his natural life; • Saira would pay all ongoing expenses incurred by the plaintiff in his role as director; • the parties would permit the plaintiff to have the use, benefit, and run the operation of Mountarmstrong Stud for the remainder of his natural life. 13. Following these share transfers, the plaintiff’s sons took over the day-to-day management and running of Saira. In 2023, Bryan O’Callaghan’s shares in Saira were redeemed and cancelled. Thereafter, the first and second defendant owned the entire equity share capital of Saira, and the plaintiff and the first two defendants each held one third of the voting shares. 14. In March 2024, the plaintiff and the first two defendants executed the Shareholders’ Agreement. The plaintiff now claims that he was induced by the defendants’ misrepresentations to enter that agreement, and also a subsequent capital variation agreement dated 21 May 2024 (“the Capital Variation Agreement”) and that the agreements are, accordingly, voidable and/or void. 15. In his first affidavit, the plaintiff averred that the Shareholders’ Agreement was handed to him by the first defendant who asked him to sign it, and that the first defendant represented that the document was to ensure that there were adequate dispute resolution provisions in the event of a dispute between the first and second defendants. He said that he understood from what was represented to him that the new agreement would have no effect 4 on his rights arising from the proxies or the 2016 Agreement. He said that he signed the document on foot of those representations. 16. By way of reply to these averments, Saira’s Chief Financial Officer, Eoin Likely, provided an affidavit detailing his engagement with the plaintiff regarding the Shareholders’ Agreement. He avers that he provided the plaintiff with a copy of it, and then met him to discuss it, prior to the directors’ meeting at which the agreement was executed. In response, the plaintiff does not dispute the timeline of events described by Mr Likely and therefore appears to accept that his description in his first affidavit was, to say the least, incomplete. He continues to assert, however, that the agreement was presented to him as a “routine governance document” and that the “manner in which it was presented suggested to him that it was primarily concerned with dispute resolution arrangements between” his two sons. 17. The Shareholders’ Agreement contained the following clauses. At clause 2.1, it provides: Each of the Shareholders hereby undertake with each other, not to exercise their voting or other rights or to procure that their nominees do not exercise such rights (whether as a Director of the Company or a Shareholder or otherwise) in relation to the Company in such a manner as would or might cause the Company in any way to be in breach of any of the provisions of this Agreement and each of the Shareholders, insofar as the same shall be within their power or procurement (individually), shall not suffer or allow any Director of the Company to act or continue to act in any way which would or might be in breach or give rise to a breach of this Agreement on the part of any of the Companies. 18. And at clause 2.6, regarding voting rights, the agreement states: The voting rights of the Shares held by the Shareholders shall be constituted in accordance with the provisions of the Constitution. Each Shareholder shall only exercise their voting or other rights or procure that their nominees exercise such rights (whether as a Director of the Company or a Shareholder or otherwise) on the basis of their respective ownership entitlements. 5 19. The legal effect of these provisions is also in dispute between the parties. The defendants contend that, as a consequence of the Shareholders’ Agreement, any reliance by the plaintiff on the proxies, even had they been effective as at the date of the agreement, would have been inconsistent with the agreement and therefore impermissible. The plaintiff denies that this is the case and argues that this outcome only arose upon execution of the Capital Variation Agreement, which resulted in the conversion of Saira’s ‘E’ shares to ‘C’ shares. The significance of this, on the plaintiff’s case, is that this had the effect of cancelling shares over which he held proxies (and undated share transfer forms) and, thereafter, prevented him from exercising his entitlements under those proxies. As with the Shareholders’ Agreement, the plaintiff contends that he was misled by the defendants regarding the effect of this Capital Variation Agreement and it is therefore void. The plaintiff complains that he was not advised to take independent legal advice by the defendants in relation to either the Shareholders’ Agreement and the Capital Variation Agreement, and that he relied entirely on his sons and Mr Likely regarding their purpose and effect. He does not dispute, however, that he executed both agreements and does not suggest that he did not read the documents he signed. 20. On the plaintiff’s case, following the execution of the Capital Variation Agreement, the defendants began to take steps to exclude him from the Company, including by removing secretarial support, cancelling his health insurance and company credit card, freezing him out of board meetings, refusing his salary, and removing his office. The defendants dispute the plaintiff’s characterisation of all these issues. By way of example, they contend that any agreement to pay the plaintiff’s credit card bills, was on the basis that any payments would be credited against a loan made by the plaintiff to Saira. Once that loan balance had been discharged, the defendants say, the plaintiff became liable for his own credit card expenses. 21. In these proceedings, the plaintiff seeks declarations that the proxies and share transfer forms remain effective, and that the Shareholders’ Agreement and the Capital Variation Agreement are void. He seeks specific performance of the 2016 Agreement, as set out above, which includes a claim that he is the beneficial owner of Mountarmstrong Stud of which Sherborough is legal owner. In addition, he seeks damages in the sum of €10.425 million in relation to a sale by him of the lease of a commercial building, described as the Archers Building, to Saira in April 2024.The plaintiff claims that the defendants failed to disclose 6 that at the time of the sale, the defendants had been negotiating a surrender of a sub-lease on the building. Had this been disclosed, pleads the plaintiff, the value of the Archers Building would have been significantly higher and he would have received that higher sum from the Company. The defendants deny all these claims. They deny any 2016 Agreement, and the validity of the proxies and share transfer forms. They contend that the relationship between the parties is now regulated by the Shareholders’ Agreement, and that all of the plaintiff’s claims are inconsistent with the terms of that agreement. They deny any misrepresentation in relation to either the Shareholders’ Agreement or the Capital Variation Agreement. They deny that the surrender had any effect on the value of the Archers Building or that they breached any duty of disclosure to the plaintiff in relation to that sale. 22. A further issue between the parties concerned the defendants’ access to the plaintiff’s company emails. In May 2025, the plaintiff made a High Court application against Saira in the matter of an intended arbitration (High Court Record No. 2025 MCA 238) seeking injunctive relief in relation to this issue. In his affidavit grounding that application, sworn on 21 May 2025, the plaintiff averred that he entered the Shareholders’ Agreement on 22 March 2024, and he refers to the arbitration agreement therein. He then refers to various disputes between him and the defendants, including his claim for oppression under section 212 of the Companies Act 2014, a dispute about ownership of certain bloodstock which, he avers, is legally owned by Saira, but beneficially owned by him, and a dispute about the proceeds of sale of the Archers Building. He then averred: “Each of the claims referred to … fall within the scope of the Shareholders Agreement. Accordingly, if the claims cannot be resolved on a consensual basis, I will be constrained to arbitrate these disputes with the Respondent.” 23. The injunction application was ultimately resolved on the basis of undertakings given by or on behalf of the Company. 24. Within two months of swearing that affidavit, on 16 July 2025, the plaintiff issued the within proceedings in which he pursues a number of claims which he had recently averred fell within the scope of the Shareholders’ Agreement and were required to be referred to arbitration. The proceedings were entered into the Commercial list of the High Court on 28 July 2025, on which date, the parties agreed a timetable for the progress of the proceedings, 7 including providing for the delivery by the defendants of a motion to compel arbitration or delivery of a defence. In the event, the defendants issued the motion to compel arbitration, which is the subject of this judgment, albeit it slightly later than provided for in the agreed directions. Though the plaintiff’s first affidavit suggested that the defendants were barred by delay from pursuing this application, this is an argument which, wisely, was not pursued. 25. The motion was heard over two days on 14 and 15 April 2026. 26. For completeness, I observe that there is a further issue in dispute between the parties in these proceedings, concerning the transfer of a penthouse apartment. The defendants accept that that dispute is not captured by the arbitration agreement but contend that any claim in relation to the penthouse should be stayed pending resolution of any arbitration proceedings. Arbitration Act 2010 27. Section 6 of the Arbitration Act 2010 provides that the Model Law shall have force of law in the State and shall apply to both international commercial arbitrations and arbitrations which are not international commercial arbitrations. The Model Law is contained in the first schedule to the Act. 28. Article 8(1) of the Model Law provides as follows: (1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. 29. Article 16(1) is in the following terms: (1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that 8 the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. 30. Accordingly, where proceedings are instituted in respect of a dispute which is the subject of an arbitration agreement, a court is obliged to refer that dispute to arbitration unless the arbitration agreement is null and void, inoperative or incapable of being performed. Importantly, Article 16 makes clear that a distinction is to be drawn between the validity of the arbitration agreement and the validity of any agreement of which it forms a part. Applicable case law 31. There is a large measure of agreement between the parties as to the applicable principles, simply a dispute about how they apply in this application. 32. The plaintiff’s claim that the arbitration agreement does not require that the disputes the subject of these proceedings be referred to arbitration rests on two propositions. First, the Shareholders’ Agreement is void, and therefore the arbitration agreement is void and of no effect. Second, even if the arbitration agreement remains effective, the disputes the subject of these proceedings are not disputes within its scope, properly interpreted. The approach to both these propositions has been addressed in the case law. 33. It is now well established that in an application to refer a dispute to arbitration, the court must give “full judicial consideration” to the question of whether there is a binding arbitration agreement between the parties (see, for instance, K & J Townmore Construction Limited v Kildare and Wicklow Education and Training Board [2019] IEHC 666). 34. In Sterimed Technologies International v Schivo Precision [2017] IEHC 35, the court (McGovern J) addressed the onus of proof in an application under Article 8 and made clear that once the existence of an arbitration agreement is established, it is for the party who opposes the referral to arbitration to show that the agreement is null and void, inoperative or incapable of being performed. 9 35. The relevant principles for interpreting an arbitration clause are set out in K & J Townmore Limited v Kildare and Wicklow Education and Training Board [2019] 2 IR 688, [2018] IEHC 770 (an earlier judgment concerning the same parties as the case referred to at §33 above, but in relation to a different agreement). The court (Barniville J, as he then was) examined the relevant Irish and English authorities and summarised the principles to be applied to the construction of arbitration agreements as follows (at p. 706/707): “(1) In construing an arbitration agreement, the court must give effect, so far as the language used by the parties will permit, to the commercial purpose of the arbitration agreement. (2) The construction of an arbitration agreement should start from an assumption or presumption that the parties are likely to have intended any dispute arising out of the relationship which they entered into to be decided by the same body or tribunal. In other words there is a presumption that they intended a “one-stop” method of adjudication for their disputes. (3) The arbitration agreement should be construed in accordance with that assumption or presumption unless the terms of the agreement make clear that certain questions or issues were intended by the parties to be excluded from the jurisdiction of the arbitrator. (4) A liberal or broad construction of an arbitration agreement promotes legal certainty and gives effect to the presumption that the parties intended a “one-stop” method of adjudication for the determination of all disputes. (5) The court should construe the words “arising under” a contract and the words “arising out of” a contract when used in an arbitration agreement broadly or liberally so as to give effect to the presumption of a “one-stop” adjudication and the former words should not be given a narrower meaning than the latter words. Fine or “fussy” distinctions between the two phrases are generally not appropriate.” 36. As the plaintiff points out, the presumption of a “one-stop shop” is no more than that, a presumption, and there will be cases in which different disputes between parties must be 10 determined in different fora (see, for example, Charwin Ltd v Zavarovalnica Sava Insurance Company [2021] IEHC 489). 37. In summarising the relevant principles in K & J Townmore, the court expressly endorsed the approach of the House of Lords in Fiona Trust v Privalov [2007] 4 All ER 951, [2007] UKHL 40. In that case, the plaintiff sought a declaration that charter agreements for eight vessels were void on the basis that agreement to them had been procured by bribery. The charter agreements contained a clause permitting “any disputes under this charter” to be referred to arbitration. The court was, accordingly, required to consider not only whether a claim that the agreements were void on the basis that they had been procured by bribery was a dispute “under this charter” within the meaning of the arbitration clause, but also whether the claim that the charter agreement was void, also meant that the arbitration agreement was void. 38. In relation to that second issue, the House of Lords referred to section 7 of the Arbitration Act 1996 which is to similar effect to Article 16 of the Model Law, i.e. it treats an arbitration agreement and the agreement of which it forms part as independent, or distinct, so that the invalidity of the main agreement does not necessarily affect the validity of the arbitration agreement. Lord Hoffman explained as follows: “[17] The principle of separability enacted in s 7 means that the invalidity or rescission of the main contract does not necessarily entail the invalidity or rescission of the arbitration agreement. The arbitration agreement must be treated as a ‘distinct agreement’ and can be void or voidable only on grounds which relate directly to the arbitration agreement. Of course there may be cases in which the ground upon which the main agreement is invalid is identical with the ground upon which the arbitration agreement is invalid. For example, if the main agreement and the arbitration agreement are contained in the same document and one of the parties claims that he never agreed to anything in the document and that his signature was forged, that will be an attack on the validity of the arbitration agreement. But the ground of attack is not that the main agreement was invalid. It is that the signature to the arbitration agreement, as a ‘distinct agreement’, was forged. Similarly, if a party alleges that someone who purported to sign as agent on his behalf had no authority whatever to conclude any 11 agreement on his behalf, that is an attack on both the main agreement and the arbitration agreement. [18] On the other hand, if (as in this case) the allegation is that the agent exceeded his authority by entering into a main agreement in terms which were not authorized or for improper reasons, that is not necessarily an attack on the arbitration agreement. It would have to be shown that whatever the terms of the main agreement or the reasons for which the agent concluded it, he would have had no authority to enter into an arbitration agreement. Even if the allegation is that there was no concluded agreement (for example, that terms of the main agreement remained to be agreed) that is not necessarily an attack on the arbitration agreement. If the arbitration clause has been agreed, the parties will be presumed to have intended the question of whether there was a concluded main agreement to be decided by arbitration. [19] In the present case, it is alleged that the main agreement was in uncommercial terms which, together with other surrounding circumstances, give rise to the inference that an agent acting for the owners was bribed to consent to it. But that does not show that he was bribed to enter into the arbitration agreement. It would have been remarkable for him to enter into any charter without an arbitration agreement, whatever its other terms had been. Mr Butcher QC, who appeared for the owners, said that but for the bribery, the owners would not have entered into any charter with the charterers and therefore would not have entered into an arbitration agreement. But that is in my opinion exactly the kind of argument which section 7 was intended to prevent. It amounts to saying that because the main agreement and the arbitration agreement were bound up with each other, the invalidity of the main agreement should result in the invalidity of the arbitration agreement. The one should fall with the other because they would never have been separately concluded. But section 7 in my opinion means that they must be treated as having been separately concluded and the arbitration agreement can be invalidated only on a ground which relates to the arbitration agreement and is not merely a consequence of the invalidity of the main agreement.” 12 Arguments 39. The defendants argue that they have established the existence of an arbitration agreement, and that the onus therefore falls on the plaintiff to show that the agreement is null and void, or otherwise inoperative. They say that he has failed to discharge the onus. By reference to Fiona Trust and Article 16 of the Model Law, they say that any question regarding the validity of the Shareholders’ Agreement falls to be determined in the arbitration and does not affect the validity of the arbitration agreement. 40. The plaintiff does not dispute the existence of an executed arbitration agreement but contends that the arbitration agreement is null and void, in circumstances where his consent to the Shareholders’ Agreement of which it forms part was procured by misrepresentation, and accordingly, no obligation to refer to arbitration pursuant to Article 8 of the Model Law arises. But for that misrepresentation, says the plaintiff, he would never have entered the Shareholders’ Agreement, and accordingly would never have agreed to arbitration. 41. On the proper construction of the arbitration agreement, the defendants contend that all of the issues between the parties – other than in respect of the penthouse – fall within the scope of the arbitration agreement. Even if the arbitration agreement is valid, the plaintiff argues that it does not capture the disputes the subject of these proceedings which relate to matters antecedent to, and separate from, the alleged Shareholders’ Agreement which he says has a much narrower scope than contended for by the defendants. The parties’ particular arguments are addressed below when analysing each dispute between the parties to determine whether it falls within the scope of the arbitration agreement. 42. Both parties made arguments regarding the merits of the underlying disputes, including the merits of the plaintiff’s suggestion that the Shareholders’ Agreement and the Capital Variation Agreement were induced by misrepresentation. I do not propose to rehearse those arguments save to the extent it proves necessary to resolve the Article 8 application. 13 Discussion 43. Two issues, therefore, arise for consideration. First, is there a valid arbitration agreement between the plaintiff and defendants? Second, and if so, are any or all of the disputes the subject of these proceedings disputes to which that agreement applies? If the answer is ‘yes’ to both questions in respect of any of the issues in dispute, the court is obliged by Article 8 of the Model Law to refer that dispute to arbitration. Is there a valid arbitration agreement, which is not null and void? 44. It is clear that the Shareholders’ Agreement contains an arbitration agreement, and the plaintiff accepts that he executed the Shareholders’ Agreement. He does not dispute, therefore, that there exists an arbitration agreement. He accepts, moreover, that the obligation, therefore, falls on him to show that the agreement is “null and void” within the meaning of Article 8 of the Model Law, by reference to the decision in Sterimed, cited with approval in Ocean Point Development Co v Patterson Bannon Architects [2019] IEHC 311 at §26: “In order for the provisions of Article 8(1) of the Model Law to be engaged, various requirements must be satisfied. First, an action must have been brought before the court in respect of a dispute between the parties. Second, the action must concern a “matter which is the subject of an arbitration agreement”. Third, one of the parties must request the reference to arbitration “not later than when submitting his first statement on the substance of the dispute”. If those requirements are satisfied, the court must refer the parties to arbitration (the word “shall” is used). The only circumstances in which the court’s obligation to refer the parties to arbitration does not arise is where the court finds that the arbitration agreement is (i) “null and void” or (i) “inoperative” or (ii) “incapable of being performed”. The onus of establishing the existence of one or more of these disapplying factors rests on the party who seeks to rely on them (see Sterimed Technologies International v Schivo Precision Ltd [2017] IEHC 35 (per McGovern J at para. 12, pp 4-5)).” 14 45. The invalidity of an agreement within which an arbitration clause is contained does not render the arbitration clause invalid. That is the effect of Article 16 of the Model Law. This is explained in the passage of Lord Hoffman from Fiona Trust, quoted above, albeit in the context of section 7 of the English Arbitration Act. Although expressed differently, the same principle applies on foot of Article 16 of the Model Law; the validity of an arbitration agreement is to be assessed independently of any question of the validity of the agreement of which it forms part. To show that an arbitration agreement is null and void within the meaning of Article 8, a party must show grounds for invalidity of the arbitration agreement independent of the alleged invalidity of the main agreement. 46. The parties are agreed that the court should give “full judicial consideration” to the question of whether the arbitration agreement is valid in an application under Article 8 of the Model Law. What then are the plaintiff’s arguments for invalidity of the arbitration agreement? 47. The plaintiff does not assert that the agreement is inoperative or incapable of being performed, his argument is confined to the claim that it is null and void, or invalid. In his written legal submissions, the argument as to invalidity of the arbitration agreement is entirely contingent on his assertion that the Shareholders’ Agreement within which it is contained is invalid because he was “entirely misled by the [first and second defendants]… as to its purpose, scope and legal effect.” 48. A claim that the main agreement was induced by misrepresentation does not equate to the arbitration agreement being null and void. Where the validity of an agreement containing an arbitration agreement is challenged on the basis that it was induced by misrepresentation, the proper inference is that the parties intended that questions regarding the validity of the main agreement should be referred to arbitration. The plaintiff’s principal argument, that the Shareholders’ Agreement is void, therefore the arbitration agreement is void, is precisely the type of argument which was rejected as misconceived in Fiona Trust, and which Article 16 (as with section 7 of the English Arbitration Act 1996) was designed to address, and must, accordingly, be rejected for similar reasons. 49. In oral argument, there was a suggestion that there were grounds for concluding that the arbitration agreement was invalid independently of the complaints about the main 15 agreement. In this regard, the plaintiff relied on references in his affidavits to what he alleged the defendants represented to him was the purpose of the Shareholders’ Agreement as described at §15 and §16 above. On this basis, the plaintiff suggests, the court should conclude that there was a misrepresentation as to the purpose of the arbitration agreement and, therefore, a question over its validity. The plaintiff argues that the court should conclude, on the basis of full judicial consideration, that the arbitration agreement is itself invalid for misrepresentation, or should at least permit cross-examination for the purpose of determining whether this is so. This argument must be rejected for several reasons. 50. First, it is clear that the plaintiff’s averments were for the purpose of establishing that he was misled about the Shareholders’ Agreement, not that he was misled about the arbitration agreement. Thus, this is not an argument as to invalidity independent of the complaint about the main agreement at all. 51. Second, the plaintiff does not in fact allege that he was misled about the scope of the arbitration agreement. Although he says that it was represented to him that the agreement was to ensure that there were adequate dispute resolution mechanisms between his two sons, he does not suggest that it was represented to him, or that he believed, that he was excluded from the dispute resolution mechanism. Put otherwise, a representation that the purpose of the Shareholders’ Agreement was to ensure a dispute resolution mechanism between the first and second defendants is not necessarily inconsistent with the plaintiff also being a party to that dispute resolution mechanism. 52. In truth, it is hardly surprising that the plaintiff does not expressly contend that he believes he was not a party to the arbitration agreement. There is no possible reading of the clause by which it could be said to apply to the first two defendants, but not to the plaintiff. The clause requires any dispute arising out of or in connection with the Shareholders’ Agreement to be referred to an arbitrator to be agreed between the parties in dispute for full and final settlement. The parties to the Shareholders’ Agreement, and therefore the parties presumptively bound by it, include the first two defendants and the plaintiff. 53. The plaintiff, an experienced businessman, does not contend that he didn’t read the arbitration agreement, or that he misunderstood its scope. He admits that he signed the Shareholders’ Agreement containing the arbitration clause. There is no non est factum-type plea by the plaintiff. He acknowledges in this application that the purpose of the 16 Shareholders’ Agreement was to address dispute resolution. He does not contend for an express representation that contrary to the express terms of the arbitration agreement, it didn’t apply to him. In the circumstances, the plaintiff’s evidence falls far short of what would be required to even raise a question as to the validity of the arbitration agreement which is independent of his complaint about the validity of the Shareholders’ Agreement. The plaintiff has, accordingly, failed to discharge the onus of showing that the arbitration agreement is null and void. 54. There is a third reason why the plaintiff’s claim that this application should be refused because the arbitration agreement is null and void should be rejected. Article 16 of the Model Law is drafted in broader terms than section 7 of the English Arbitration Act. In addition to providing that the arbitration agreement and the agreement of which it forms part must be treated as distinct or independent, Article 16 expressly provides that an arbitral tribunal may rule on its own jurisdiction, including any objection as to the existence or validity of an arbitration agreement (see, Mayo County Council v Joe Reilly Plant Hire Limited [2015] IEHC 544). It is not necessary for the purpose of this judgment to map the precise interaction between Article 8, which requires a referral to arbitration unless an arbitration agreement is null and void, and Article 16, which provides that the arbitral tribunal can rule on the validity of the arbitration agreement. This may lead to some complexity, particularly where full judicial consideration of whether there is an arbitration agreement is required. For the purpose of this application, any question of whether the arbitration agreement was invalid by reason of misrepresentation, if that case had been adequately made out on affidavit, which it hasn’t, is a question which the Model Law clearly contemplates falls within the jurisdiction of the arbitral tribunal. 55. Two further matters require to be addressed. The first is to observe that the plaintiff’s suggestion that the arbitration agreement is invalid, whether because it only applied to the first two defendants, or otherwise, is wholly inconsistent with his sworn evidence in his earlier application in which he sought injunctive relief in aid of arbitration. The defendants argue that the plaintiff is estopped from denying the arbitration agreement, having previously invoked it with a view to securing an order from this court. There must be some force in that suggestion. At the very least, a party who invokes an arbitration agreement should not subsequently be permitted to disclaim it on factual grounds without offering some compelling explanation for its change of position. In this case, the plaintiff offers none. His 17 first affidavit did not even address the fact that the plaintiff had sought relief from the court on the basis that some of the very disputes which form part of these proceedings were required by the arbitration agreement to be referred to arbitration. In reply to the defendants’ affidavit highlighting his change of position, in his second affidavit the plaintiff simply says the following: “Any position I have adopted, including in relation to the arbitration clause in the injunction proceedings, was a reflection of my understanding, informed by the advice of my legal team as it was then constituted and instructions which I gave based upon that advice.” 56. The court, giving full judicial consideration to whether there is a valid arbitration agreement, is entitled to have regard to the fact that the party contending that there is no valid agreement has previously issued proceedings and sworn evidence to the contrary, and has provided no substantive explanation for his change of position. I agree with counsel for the defendants’ observation that it is neither “fair nor appropriate” to imply that the plaintiff’s conduct in relying on the arbitration clause in the earlier application was due to defective legal advice. The plaintiff’s prior reliance on the arbitration agreement is, at the very least, strong evidence that it is not null and void. As I have made clear, on the basis of the evidence before this court, any advice that the plaintiff may have received that he was bound to deal with any disputes which fell within the scope of the arbitration agreement in arbitration was plainly correct. 57. The second issue which needs to be considered is the plaintiff’s application for cross- examination. In circumstances where the court is required to give full judicial consideration to whether there is a valid arbitration agreement, it would arguably be necessary to permit cross-examination if the question of whether there was a basis for contending that the arbitration agreement was null and void turned on disputed affidavit evidence (see RAS Medical v Royal College of Surgeons [2019] 1 IR 63, [2019] IESC 4). The possibility of cross-examination to resolve such a dispute was adverted to in Lisheen Mine v Mullock and Sons (Shipbrokers) Limited [2015] IEHC 50. 58. As mentioned above, the plaintiff has issued a motion seeking leave to cross-examine the first defendant and Mr Likely. However, as is apparent from his solicitor’s affidavit 18 grounding that motion, the issues identified as being in dispute relate to the validity of the Shareholders’ Agreement not the arbitration agreement. Moreover, in concluding above that the plaintiff had failed to discharge the burden of proof on him in resisting this application – to show that the arbitration agreement is null and void – I have not purported to resolve any disputed facts as between the plaintiff and defendants. Indeed, it was not necessary to refer to the defendants’ denials of the plaintiff’s claim of misrepresentation at all. The plaintiff’s case, at its height, does not disclose an arguable basis for contending that the arbitration agreement is null and void. It is not appropriate or necessary to permit cross- examination to enable the plaintiff to improve his case. 59. In the circumstances, I am bound to refer to arbitration any disputes between the parties which fall within the scope of the arbitration agreement. Do the issues in these proceedings fall within the scope of the arbitration agreement? 60. It must first be observed that the arbitration agreement is broadly drafted. It refers to any dispute or difference “arising out of or in connection with” the Shareholders’ Agreement. The particular terminology used may, however, be of less significance in light of the decision in Fiona Trust and the endorsement of the principles set out in that case in this jurisdiction, which disavow fussy or fine distinctions and suggest that the court should start from the position that the parties intend a “one stop shop” for the resolution of all their disputes unless a clear contrary intention is evident. 61. It remains necessary, however, to consider the nature of the disputes between the parties in order to determine whether they can truly be said to be disputes about matters the subject of an arbitration agreement or, put another way, they are disputes which the parties intended would be resolved by arbitration. Indeed, the defendants have already accepted that one of the disputes between them, regarding transfer of the penthouse, is not captured by the arbitration agreement. 62. It is simplest to examine each claim in the proceedings in turn. Before doing so, I make three general observations. 19 63. The first is that the plaintiff’s claims that the disputes fall outside the scope of the arbitration agreement are, to a significant extent, informed by his claim regarding the scope of the Shareholders’ Agreement. In this respect, he claims that the Shareholders’ Agreement has a narrow scope and is confined, per the recitals, to regulating the future conduct of the business of the Company. On the plaintiff’s view, the Shareholders’ Agreement is, therefore, forward-looking only, and has no relevance regarding his claims arising from what was done and agreed in 2016, and separately, is not relied on by him in relation to any of his claims, all of which, therefore, fall outside the scope of the Shareholders’ Agreement. 64. Neither of these reflect the correct approach to determining whether the disputes fall within the scope of the arbitration agreement. The suggestion that, because the Shareholders’ Agreement is intended to regulate the future conduct of the Company, it cannot have a bearing on what the plaintiff contends was the position prior to that agreement is not logical. By agreeing to regulate the future conduct of the business of the Company in a particular way, it is entirely possible that the parties agreed to alter the existing position. If that is so, then any disputed claim that the pre-existing position remains unchanged by the Shareholders’ Agreement is necessarily a claim which will involve a consideration of whether the Shareholders’ Agreement has, in fact, altered the position. That, without doubt, would be a dispute arising from or in connection with the Shareholders’ Agreement. 65. Relatedly, the question of whether a dispute arises from or is in connection with an arbitration agreement cannot be resolved simply by having regard to the plaintiff’s position. If that were so, a plaintiff could always avoid an arbitration agreement by denying the relevance of the agreement of which it forms part. Rather, what the court must consider is what is in dispute between the parties. 66. And thirdly, although the plaintiff is correct that the approach to interpretation of arbitration clauses set out in Fiona Trust and K & J Townmore does not mandate a conclusion that all disputes between the parties to an arbitration clause must be referred to arbitration, the presumption is in favour of a one stop shop for dispute resolution unless there is clear language excluding certain types of dispute from the scope of the arbitration agreement. Here, the plaintiff identifies no language within the arbitration agreement which excludes certain types of dispute or narrows the scope of the arbitration agreement. 20 The control dispute 67. The plaintiff claims that his rights are governed by the proxies and share transfer forms and are unaffected by the Shareholders’ Agreement and Capital Variation Agreement, because those agreements are rendered void by misrepresentation, and he remains entitled therefore to exercise control over the Company. As is apparent from his affidavits claiming that the effect of those agreements was misrepresented to him, he accepts that the effect of those agreements is that any rights he has or had under the proxies or share transfer forms have been lost. There is some dispute about whether it was the Shareholders’ Agreement or the Capital Variation Agreement which had this legal effect, but the plaintiff also accepts that the Capital Variation Agreement was an agreement made within the framework of the Shareholders’ Agreement: at paragraph 11 of his second affidavit, he avers that it was only once the Shareholders’ Agreement was in place that the capital variation could be introduced. Even on the plaintiff’s case, therefore, his claim regarding the continuing effectiveness of the proxies and share transfer forms requires a consideration of whether the later agreements are valid. 68. The plaintiff claims that they are void for misrepresentation, but the defendants claim that they remain valid. The dispute about the continuing validity of the proxies and share transfer forms necessarily, therefore, involves a consideration of the dispute about the validity and legal effect of the Shareholders’ Agreement and the Capital Variation Agreement made pursuant to it. Indeed, those issues are at the heart of the dispute. It is true that the defendants also argue that the proxies and share transfer agreements were of no legal effect before the Shareholders’ Agreement was executed, but the fact that not every argument which the parties rely on is referable to that agreement does not mean that the dispute about control is not a dispute in connection with the Shareholders’ Agreement. It clearly is, and all disputes regarding control of the Company must, therefore, be referred to arbitration. The management dispute 69. The plaintiff advances various complaints about the management of the Company and decisions made by the defendants to exclude him from entitlements that he had previously 21 enjoyed. Though the question of whether there was a concluded agreement in 2016 on the terms alleged by the plaintiff can be determined without reference to the Shareholders’ Agreement, the plaintiff’s claim is that he continues to enjoy his rights under that 2016 Agreement. The defendants say that his rights are governed by the 2024 agreement which, even on the plaintiff’s case, is an agreement to regulate the future conduct of the business of the Company. The plaintiff’s claim for specific performance of the 2016 Agreement cannot, therefore, be determined without reference to the Shareholders’ Agreement and is, accordingly, a dispute arising under or in connection with that agreement. 70. This applies to all aspects of the alleged 2016 Agreement, including, indeed particularly, the claim in relation to the Mountarmstrong stud farm, which is owned by the fourth defendant. As the defendants point out, clause 3.2 of the Shareholders’ Agreement expressly provides that the business of each of the Companies shall be controlled by the board of directors of each of those companies. The Companies referred to in clause 3.2 are specified in the third schedule to the Shareholders’ Agreement and include the fourth defendant, the company which owns the stud farm. The plaintiff’s claim that there is a subsisting 2016 agreement which gives him beneficial ownership and control of the stud farm is, accordingly, at odds with the express provisions of the Shareholders’ Agreement. It is beyond question, therefore, that the dispute in relation to the stud farm is a dispute which is captured by the arbitration agreement. 71. All management related disputes and the disputes in relation to the existence and/or continuing effect of the 2016 Agreement, including in relation to control of the stud farm, must therefore be referred to arbitration. Archers Building dispute 72. The plaintiff explains his claim regarding the sale of the Archers Building in his first affidavit. The building was owned by a subsidiary of Saira, and the plaintiff held a 99-year lease over the building. He granted a 25-year lease to KBC Bank plc in 2004. In 2024, he sold his leasehold interest to Saira in return for Saira assuming his outstanding loan obligations in relation to the property of c. €21 million and accepting a loan from him of c. € 7 million. He says that he sold the property based on a valuation prepared for the Company. 22 However, he says that neither he nor the valuer was told that at the time, the second defendant was negotiating a surrender of the lease with KBC. He said that this resulted in the property being undervalued to the tune of €10.425 million. He says that the non- disclosure of the negotiations was a secret profit and breach of duty on the part of the second defendant, and claims damages equivalent to the undervaluation. The defendants deny that the surrender affected the value of the property at all. 73. The plaintiff says that this transaction has nothing to do with the Shareholders’ Agreement and is not therefore governed by the arbitration agreement, stressing that he was not acting in his capacity as a shareholder when he completed the transaction. Curiously, he says in his first affidavit that the transaction did not relate to the business of the Company, which is a little hard to understand. 74. I accept the plaintiff’s argument that the transaction was not governed by the Shareholders’ Agreement. However, the question is not whether the transaction was governed by the agreement, but whether the dispute is. If, for instance, the plaintiff’s claim was that the Company had not paid money due under the agreement to purchase the Archers Building, it is difficult to see how that could be said to be a dispute arising under or in connection with the Shareholders’ Agreement, notwithstanding that it relates to the business of the Company. The plaintiff’s claim, however, is that the defendants breached their duty to him in failing to disclose relevant information regarding the transaction. 75. The defendants deny any non-disclosure, and argue that they have discharged their disclosure obligations to the plaintiff as provided for at clause 3.5 of the Shareholders’ Agreement which provides as follows: The Company shall keep each of the Shareholders fully informed of the progress of the business of the Company and furnish to each of them to such extent and in such form and detail as any of them may from time to time reasonably require particulars of any matters concerned with and arising out of the activities of the Company. 76. The defendants characterise the plaintiff’s claim as a claim that there has been a breach of the obligation contained in Clause 3.5, and therefore a claim which falls to be determined in arbitration. The plaintiff rejects this characterisation. In oral argument, his counsel expressly disavowed any reliance on the obligation imposed by clause 3.5 in relation to the 23 Archers Building claim, contending rather that any obligation arose because of the special relationship of trust between the plaintiff and the first two defendants, his sons. 77. From the plaintiff’s perspective, therefore, it is perhaps understandable that he argues that this claim falls outside the arbitration agreement. But it is necessary to consider the position for which the defendants contend. They will argue, I am told, that clause 3.5 sets out the full extent of the defendants’ obligations to the plaintiff and fulfilment of their obligations under clause 3.5 would provide a “complete defence” to the plaintiff’s claim. 78. Seen in that light, it can be seen that the dispute in relation to the Archers Building is, at least in part, a dispute arising from or in connection with Shareholders’ Agreement, certainly so if the arbitration agreement is read and understood in accordance with the principles identified in Fiona Trust. 79. Accordingly, all the disputes between the plaintiff and defendants the subject of these proceedings other than the dispute in relation to the penthouse must be referred to arbitration. In so concluding, it has not been necessary to determine whether the plaintiff was estopped from resiling from his sworn position that particular disputes all required to be referred to arbitration. In this respect, there may be a difference between a party disputing, on disputed factual grounds, the validity of an arbitration agreement on which they had previously relied, where, as I have said, a compelling explanation would be required to justify such a change of position, and a party changing their position in relation to the scope of an arbitration agreement. The consideration of whether that is so must await a case in which it might be determinative. 80. The defendants argue that the penthouse claim should be stayed pending the resolution of the other disputes in the arbitration. In this regard, they ask the court to exercise the discretion identified in Kelly v Lennon [2009] 3 IR 794. In that case, the court concluded that some of the issues between the parties fell within the scope of an arbitration agreement and others did not and stated (at p. 806): “[34] In my view, in cases such as this, where some but not all of the issues necessary to determine a cause of action arising in proceedings are the subject of a valid and subsisting arbitration clause, the court has a discretion as to the proper course of action to adopt which should be exercised in the light of all the circumstances of the case with 24 a view to ensuring, insofar as possible, a speedy resolution of all of the issues which arise, and a final determination of the cause of action concerned, while at the same time ensuring that the court does not trespass on determining any issue which has been properly made the subject of an arbitration agreement between the parties.” 81. The court in that case placed a limited stay on certain issues in the proceedings which had not been referred to arbitration where it was “preferable for the court to have an answer to the arbitrator’s consideration” of related issues before the court the court embarked upon a consideration of the issues to be stayed. The order made allowed for a progression of proceedings towards trial. 82. In this case, no argument has been advanced that any issue which now falls to be determined in the arbitration will have any bearing on the dispute in relation to transfer of the penthouse. I can see no legal basis, therefore, for placing a stay on the further prosecution of that claim. 83. There may, of course, be a practical basis. All that the plaintiff’s reversal of course in relation to the applicability of the arbitration agreement has achieved is to delay the progress of his claim and to increase the overall cost of the litigation. It is idle to speculate on what he hoped to achieve by this volte-face. It remains open to the parties to manage the further cost of this litigation by agreeing an efficient means of disposal of the two separate strands. As in all litigation, but particularly litigation involving members of the same family, the parties should make every effort to investigate whether mediation offers a realistic avenue for resolution. Conclusion 84. There is a valid and subsisting arbitration agreement which binds the parties to refer all disputes between them arising out of or in connection with the Shareholders’ Agreement to arbitration. All of the plaintiff’s claims in these proceedings, other than the claim in relation to the penthouse, involve disputes which are governed by the arbitration agreement and must therefore be referred to arbitration. 25 85. The penthouse claim is entirely independent of the issues to be referred to arbitration and may proceed in the ordinary way before this court. I will, if necessary, give directions regarding the further progress of that claim, and encourage the parties to agree an efficient means of managing the proceedings. 86. I will list the matter for mention before me on 12 May 2026 at 10.30 am for the purpose of making final orders on this application and addressing any issues arising, including the question of costs. 26