THE SUPREME COURT
[Appeal No.s 199/2014 & 243/2014]
O’Donnell J.
MacMenamin J.
Charleton J.
IN THE MATTER OF THE ABITRATION ACTS 1954-1998
AND IN THE MATTER OF AN ABITRATION
Fayleigh Limited
Applicant/Appellant
And
Plazaway Limited trading as Hotel Partners
And
Francis Murphy
Respondents
Judgment delivered on the 30th of November, 2015, by O’Donnell J.
1 This appeal marks the latest stage in a process of dispute adjudication and resolution which has been both lengthy and costly to a point where on the hearing of this appeal the Court was informed that the costs now exceed the amount in issue.
2 The issues before this Court can be identified as whether the High Court was correct to find that the arbitration had been misconducted; if so, whether it was appropriate to remit the matter to the arbitrator for further hearing after a finding that the arbitration had been misconducted; whether a calculation of the award of damages, not itself challenged at the arbitration, could be shown to be incorrect as a separate and independent ground for remittal; and whether, if the Court was to direct the setting aside of the award and a full rehearing of the arbitration, it should award the costs of the proceedings against the arbitrator.
3 Arbitration can often be an efficient and practical alternative to court proceedings. Indeed, since arbitration is, in principle, more costly than the court process, it is justified from a policy point of view only if the proceedings can be conducted more speedily, more efficiently, in a less costly fashion, and perhaps with a greater assurance of a result which will be satisfactory. There are many areas where a dispute may involve some technical complexity, and where it is an advantage in having an arbitrator with expertise in the area. The public policy in favour of arbitration is to be found in legislation since 1954, and indeed, its progression can be seen in the legislation up to and including the Act of 2010, which has continued a process of substantially reducing the grounds for challenge to arbitral awards. As was observed in Galway County Council v. Samuel Kingston Construction Ltd. [2010] 3 IR 95 (which, like this case, was concerned with an arbitration under the 1954 Act (as amended)), the system for arbitral review has a high tolerance for arbitral error. This observation is only reinforced by the provisions of the 2010 Act, which come very close to achieving the objective identified by McCarthy J. in Keenan v. Shield Insurance Company Ltd. [1988] I.R. 89 of making an arbitration award final in every sense of the word. When the parties are on relatively equal terms, and can appreciate the commercial and practical benefits of a speedy and sometimes private determination, there is much to be said for a decision which is binding and final. Certainty has significant commercial value. But sometimes, as this case illustrates, the practice can deviate from the theory, and an arbitration may not run as smoothly as desired.
FACTS
4 Fayleigh Limited (“Fayleigh”) was the respondent and counter claimant in the arbitration proceedings, the applicant in the High Court proceedings, and is the appellant in this Court. It was, at the time relevant to the dispute, the lessee under a 35 year lease of premises known as Trim Castle Hotel. In 2006, it entered into a management agreement for a 10 year period with the respondent company, Plazaway Limited (“Plazaway”) under which Plazaway agreed to manage the hotel for Fayleigh. It is common case that, in addition to the services provided under the management agreement, Plazaway also provided what it described as “shared services”, that is, services shared with other hotels being managed by Plazaway. The management agreement provided for a number of different circumstances in which the agreement might be terminated before the expiry of the 10 year term, none of which arise here. It also provided, however, that in the event that Fayleigh wished to terminate the agreement, in circumstances not otherwise provided for, and before the expiry of the 10 year term, it was obliged to give either 12 calendar months’ notice in writing or to pay to Plazaway an amount equal to the fee payable for the preceding year. There is no dispute about the meaning of this term, but there is a vigorous dispute as to its applicability to the facts of the case, and if applicable, as to the correct calculation of the amount.
5 On the 19th of January, 2009, the solicitors then acting for Fayleigh wrote to the solicitors acting for Plazaway contending that in late March, 2008, after a meeting between David O’Brien (the principal of Fayleigh) and Colm Deignan (the managing director of Plazaway) that Plazaway had agreed to “step back” from the agreement and no longer performed its obligations under the agreement for the balance of that year. It was contended that Plazaway had only continued to provide the shared services which the letter of the 19th of January, 2009, also purported to terminate. Plazaway contended, in response, that there was no such agreement to step back, and that the agreement had continued until the end of December when it was terminated by Fayleigh, giving rise to an obligation to pay arrears of management fees which had become payable during the balance of 2008 to the amount of €265,051.94 and also to make the terminating payment calculated on the basis of the fee payable for the period of January to December, 2008, (€175,415.62), and furthermore to pay certain build and design fees due under the agreement amounting to €36,300. The total came to €476,767.56. Fayleigh responded to this claim by denying that any fees were due for the balance of 2008, or that any terminating fee was payable, and, in any event, by counter claiming for damages alleged to be caused to it by the defective and negligent performance of its functions by Plazaway. The agreement provided for arbitration, and in due course the President of the Law Society appointed the second named respondent as an arbitrator in 2009.
6 It might be noted that the disputes here involve no particular issue requiring specific expertise such as might arise in building or engineering contracts or other technical disputes. The issue here was one wearily familiar to many lawyers and regularly encountered in courts: a claim for an amount alleged to be due under a contract; a dispute as to whether the facts give rise to entitlements; a dispute as to what transpired at a meeting, and the subsequent conduct of the parties; and other disputes about quality of performance upon which expert evidence is called. It is clear that there was one central dispute upon which a large part of the claim turned, the resolution of which might necessarily have an effect on the remaining issues: whether there had been an agreement in 2008 whereby Plazaway agreed to step back from the management agreement, and subsequently did so. If so, then Plazaway was not entitled to fees for providing services under the management agreement for 2008 or to any termination fee. Whatever way this matter was resolved might necessarily cast light on some of the matters raised in the counter claim. In any event, the question of an agreement to step back was central to the issues which were argued in the High Court and in this Court.
7 The arbitration did not commence until the 21st of February, 2011, and was heard over 12 days between that date and the 26th of June of the following year. Since the arbitrator sat for lengthy hearing periods, this, it was said, equated to 25 court hearing days. The arbitrator published an award a further year later on the 21st of May, 2013. In his award, he completely rejected the contention of Fayleigh that there had been a stepping back, and further dismissed the counter claim and made an award in favour of Plazaway of the full amount, €476,767.56.
THE HIGH COURT PROCEEDINGS
8 Plazaway sought enforcement of the award and Fayleigh immediately brought proceedings to set aside the award on the grounds that the arbitrator had misconducted the arbitration. The High Court (Ryan J.) held that there had been misconduct in the arbitration but decided not to set aside the award in its entirety, but rather to remit the matter to the arbitrator. Fayleigh was therefore partially successful in its claim but has appealed the decision of the High Court, arguing that, while not obliged as a matter of law to do so, nevertheless, on the facts of this case, once the High Court had found that there was misconduct it ought to have set aside the award in its entirety. Furthermore, on this appeal, Fayleigh has now indicated that that it will abandon any counter claim so that if the award is set aside the only issue it says would be ventilated in a new arbitration would be whether Plazaway was entitled to the management fee and termination payment (subject to one other issue as to calculation). Plazaway, for its part, defends this appeal by arguing, in the first place, that the finding of misconduct should be set aside, and further arguing that if the finding is upheld, the High Court was right to remit the matter to the second named respondent. Furthermore, Plazaway contends that should the Court accede to Fayleigh’s appeal and set aside the award in its entirety so that it must start afresh before a new arbitrator, the costs of the proceedings should be ordered against the arbitrator, who should, it is argued, bear responsibility for any misconduct giving rise to these proceedings.
THE ALLEGATION OF MISCONDUCT
9 The decision of the High Court rests entirely on matters which have their origins in days three and four of the arbitration. At this stage, the claim had been opened, Mr. Deignan had given evidence in support of it, and on day three he was being cross-examined by counsel for Fayleigh. On day three, counsel for Plazaway made reference to seventeen volumes of documents. Since these documents are central to the case, it is important to describe what was involved. As part of the preparation for the arbitration, discovery had been made, and the claimant (Plazaway) had discovered some seventeen volumes of documentation to Fayleigh. In the course of preparation for the arbitration, Plazaway had prepared books of documentation, five folders of which were documents alleged to support its claim, five further folders containing documents relating to the counterclaim, and an additional two core books of discovery. The contents of these twelve books overlapped substantially, therefore, with the contents of the seventeen volumes of raw discovery made by Plazaway. What was significant about the seventeen volumes produced by Fayleigh on day three, therefore, was not the contents of the volumes, but rather the fact that Mr. O’Brien and his solicitor had carried out an exercise of colour-coding all of the documents in the seventeen volumes by reference to specific matters. The result of this exercise was, it was alleged, that it could be seen that the level of activity post March, 2008, was much less than that in the corresponding periods in previous years, and moreover, that such activity as had occurred post March, 2008, was only consistent with the provision of shared services, and not with the continued performance of the management agreement. Thus, the key element of the books produced on day three was the colour-coding and what it was alleged to show.
10 The production of this documentation in the course of cross-examination led to an objection on the part of Plazaway. Counsel stated that he had no objection to the matter being put to the witnesses in principle, but it was necessary that the documents should be proved first. This is a variant of an objection sometimes encountered in trials in court where one party seeks to object to the production of documentation or to force another party to call a witness who may otherwise not be called, or might indeed be hostile to the that party. But the objection here was not really of much substance since the documentation here all emanated from the plaintiff’s discovery and certainly could be put to the plaintiff’s main witness. In so much as the colour-coding required evidence then that could have been proved in due course by Mr. O’Brien or another witness. Nevertheless, counsel put his argument very succinctly on day three (at pp. 52 to 53):
“I absolutely accept what my friend says in relation to the relevance of this documentation. In fact, it seems to me to go very much to the heart of the Defence that has been advanced. But with respect, Arbitrator, I don’t see how it can be advanced as evidence unless it is proved and there is an opportunity to put it to the witness.”
Thus, the objection made was of an absence formal proof.
11 While this evidential dispute was being ventilated, the arbitrator intervened, being perhaps, and if so understandably, anxious about the implications for the length of the arbitration if 17 volumes of documents were to be deployed in cross-examination of the first, and perhaps subsequent witnesses. Thus, he stated (at p. 54):
“I am not going to allow the situation to develop where 17 lever arch files are going to be put to this witness, or any witness.”
A short time later he said:
“I accept that it can be very relevant in determining the involvement of the claimant, or the non-involvement of the claimant as you put it. But it simply cannot happen that we are going to spend weeks going in to this, because I don’t think putting it to the witness, and I accept it is the only way you can prove it, as Mr. Dunleavy says, is that you have to put it to the witness to prove. That is the only way. But if that is the case, somebody should toss a coin, because the costs in doing that will far exceed what this is about, and that is not a good way to proceed with this arbitration, or with any arbitration.”
12 It is clear from these exchanges that neither counsel for Plazaway nor the arbitrator was in doubt as to the relevance of the documentation. It is equally clear that there was a difference between their approaches. Plazaway had an objection as to proof, whereas the arbitrator was concerned about the practical impact on the arbitration. On the following day (day four) there were full submissions on the issue with both counsel addressing the evidential question. There was a short adjournment, and the hearing resumed with the arbitrator delivering his ruling, at p. 28:
“I have listened very carefully to the arguments put forward by counsel for the applicant and by counsel for the Respondent. There are 17 books containing Discovery documents, which have been provided by the Applicant. In my view, there is no need to prove the documents themselves. I do not accept that the documents, therefore, have to be put to this or any other witness of the Applicant, because I can see them also being put, of necessity, to Mr. Savage.
Yesterday I indicated my view that it would not be in the interests of either party to do so. Not only because of the additional costs involved, but also because inevitably the Applicant’s witness will have, in many instances, a different view of the significance of the content of them, and I will have to consider that evidence in due course.
If they are put to the Applicant’s witness, then the Applicant may seek to introduce them in cross-examination of the respondent’s witnesses. That whole exercise would seriously inhibit and delay the progress of this arbitration. I am, therefore, not going to allow them to be put to any witness. … I indicated yesterday that I was prepared to read them if required. I am entrusted with resolving (sic) this dispute between the parties. I will not be influenced, as a witness might, by the colour-coding, or the tagging, and even if I hear the evidence, if it was put, nothing could come out of it, except disagreement, as to the effect of the claims as to whether the colours/flags and the contents of those documents prove that the material is or is not part of the management services, or the shared services.
Therefore I will read the seventeen books as they are, and I will construe them, and their content, and their relevance, by reference to the pleadings, and in the context of the other evidence.”
13 It might be said, perhaps with the wisdom of hindsight, that there were many practical solutions to the logistical difficulties which were undoubtedly presented by the course that Fayleigh proposed to take in this respect at the arbitration. A sample of the documents could have been identified which best illustrated Fayleigh’s contentions. A witness statement might have been required from Mr. O’Brien or any other witness setting out exactly what it was said the documents showed and which would then allow Plazaway’s witnesses to address this specific contention. But it is hard to see that it was a satisfactory solution for the arbitrator to read all of the documents themselves without reference either to the colour-coding or to any evidence as to what it was said that such colour-coding would lead a reader of the documentation to understand.
14 In the light of subsequent events, it is a little ironic that it was counsel for Plazaway who was most concerned with the course proposed. Counsel sought the assurance of the arbitrator that he would only commence to read the documents after hearing the evidence. The arbitrator said he would do this, and day four closed with the arbitrator stating for the record that he was not taking possession of the seventeen volumes at that point (day four, p. 132).
15 The arbitration proceeded and evidence finally concluded. There was a directions hearing on the 24th of June, 2012, which it should be noted was sixteen months after the issue which had arisen on day four and which has been almost the sole subject of these proceedings. At the conclusion of the hearing, counsel for Fayleigh raised the issue of the colour-coded documents. The arbitrator is recorded in a contemporaneous attendance made by Plazaway’s solicitors as saying “I didn’t know what I am to do with them but I do recall that we dealt with them by way of a direction and I said I would revisit it if necessary. I don’t know if I’m supposed to read them or to leave them aside”. Counsel agreed that the question of the documents could be dealt with in the legal submissions.
16 In the legal submissions made on behalf of Fayleigh, the arbitrator was referred specifically to the transcript of day four, and it was submitted that the documents, when read, would show that “…the involvement of [Plazaway] in the running of the hotel in 2008 could not in any way be regarded as consistent with its obligations under the terms of the Management Agreement”. This was consistent with the position taken by Fayleigh on days three and four of the arbitration hearing and with the ruling of the arbitrator. However, the legal submissions on behalf of Plazaway sought to take the opportunity of returning to the issue of admissibility, although contending this time that since the documents had not been formally proved, they could not be considered at all.
17 The arbitrator delivered his award on the 1st of May, 2013. He rejected Fayleigh’s defence and its counter claim. In relation to the claim that Plazaway had “stepped back” from the agreement, he said (at p. 33):
“There is no other evidence anywhere of this.”
He also recorded, at p. 19, that the applicant’s case that the claim of stepping back from the agreement was:
“…inconsistent with the facts, the day to day engagement in the management of the hotel at that time, and throughout the remainder of the year 2008, and the contemporaneous documentation supporting those facts.”
18 The arbitrator made specific reference to the 17 volumes of documents at p. 46 of his award:
“The arguments for the Applicant and the Respondent were comprehensively advanced during the hearing, and I have trawled through every paper and document submitted to the hearing. I have not admitted the 17 extra lever arch files proffered by the Respondent as I do not consider them appropriate.”
19 The argument on behalf of Fayleigh, which the High Court accepted, was that since the arbitrator had specifically stated that he was going to read the documents and had accepted their relevance to its defence, the failure to do so was misconduct of the arbitration in the technical sense justifying the setting aside or remittal of the award. On behalf of Plazaway, Bernard Dunleavy S.C. accepted that if the directions hearing had not occurred, this conclusion was unavoidable. However, he argued that because of the exchange at the directions hearing (which, it should be said, was not principally directed towards this issue) the position had been reopened and the arbitrator had, in effect, accepted Plazaway’s submission that the documents were not admissible in evidence. It was argued the arbitrator was entitled to take this view of matters and, even if wrong, it could not be misconduct.
20 I cannot accept this submission. First, and perhaps most importantly, I do not consider that it is a valid or accurate description of what the arbitrator did. The arbitrator did not decide that the documentation was inadmissible because it had not been proved or because of any other evidential infirmity. Instead, he held that it should not be admitted because he considered that the documents were “inappropriate”. If this means anything, it seems much closer to his firmly stated (and understandable) position that the arbitration should not be delayed indefinitely by trawling through 17 volumes of documentation.
21 In any event, even if I were to proceed on the assumption that counsel was correct, and that the arbitrator had belatedly ruled that the evidence was, as a matter of law, inadmissible because the documentation had not been proved, I do not necessarily accept that this would avail Plazaway on this appeal. It was accepted, as it must be, that the documentation was an important part of the defence (or, at minimum, was a matter upon which Fayleigh and Mr. O’Brien placed considerable weight). If the arbitrator had proceeded, as suggested, to change his mind and rule the documentation inadmissible because of a lack of proof (which was purely formal and which could easily have been provided) that would have been particularly unfair, not least because the course the arbitrator took on day four effectively precluded any such proof. It is not, however, necessary to form any view as to whether, even on this hypothesis, there would have been misconduct, since I do not accept this characterisation of the events. In those circumstances, the conclusion of the High Court that the arbitration was misconducted because of the simple fact that the arbitrator, having said that he was going to read the documents, and having acknowledged their relevance and importance did not do so, is one that must be upheld.
22 The trial judge considered that, notwithstanding the evidence of misconduct, it was open to the Court either to set aside the award in its entirety under s.38 of the 1954 Act or to remit the award to this arbitrator under section 36. On this appeal, Fayleigh accepted that the Court had power to remit the matter to the arbitrator but argued that the High Court ought not to have done so, but rather ought to have set aside the award. Section 38 provides that if misconduct is established, a court “may” set aside the award. I am prepared to approach this case, therefore, on the basis that it is common case that the Court was not obliged, as a matter of law, to set aside any award once misconduct was found, although it should be noted that no specific argument was addressed to this point. Fayleigh argued that it had lost confidence in the arbitrator as a result of this matter and should not be required to submit to a further hearing before the arbitrator. Fayleigh also pointed out that the arbitrator made findings rejecting the evidence of Mr. O’Brien and that he cannot be expected to ignore such findings, and Fayleigh, for its part, cannot be expected to believe he would do so. The position, it was submitted, was broadly analogous to that in Galway County Council v. Samuel Kingston Construction Ltd. [2010] 3 IR 95. Furthermore, it was argued that insomuch as the High Court may have been influenced by the fact that the arbitration had already taken an inordinate amount of time, and that to reopen the entire matter would be extremely costly, then that was no longer a relevant concern because Fayleigh was prepared to undertake to abandon its counterclaim which would mean that the arbitration would be much more confined.
23 I do not agree that the situation is analogous to that in Galway County Council v. Kingston Construction Ltd. [2010] 3 IR 95. In that case, there was a series of matters which led the parties to justifiably lose confidence in the arbitrator. Here, however, there is a single, and to some extent understandable event. It is also necessary to consider the error (and that is what it was) in its context. The instinct of the arbitrator was entirely understandable. Producing 17 volumes of colour-coded documents was an entirely unwieldy way to present this aspect of the case. It is also easy to see that, having heard the matter over an extended period, he might be tempted to treat the 17 volumes of documentation as low grade material in comparison to the direct evidence of the parties involved. This evidence was only directed to supporting, in some way, Fayleigh’s case that there had been an agreement that Plazaway would step back from the management agreement as of March 2008. The primary evidence in that regard was the oral evidence of the parties to the alleged agreement. That oral evidence could also have been tested against the evidence of fact as to what occurred on the ground in the hotel during the relevant period. The documentation contained in the 17 volumes was not new to the arbitrator and the significance of the volumes was only the manner in which the documentation was arranged and analysed. It is also relevant that that arrangement and analysis was not the result of any independent or expert analysis. It was the inevitably subjective analysis carried out by Mr. O’Brien, and undoubtedly was open to query on that ground. Therefore, although the colour-coding issue in relation to the 17 volumes is important as a matter of fairness because of the emphasis Mr. O’Brien and Fayleigh placed upon it, nevertheless, it was a somewhat peripheral matter. Since Fayleigh placed reliance upon it, it was entitled to have it considered. The failure to do so was misconduct, but that itself does not say anything as to the weight of the point in the arbitration.
24 The principal significance of this evidence was perhaps that while an arbitrator might be tending against Mr. O’Brien and Fayleigh, the documentation might give him pause for thought and be, at best, the first chink in Plazaway’s case, and which might, in turn, require that other matters be re-examined. That is a function they can still perform. It is true that the arbitrator has rejected the Fayleigh claim and therefore Mr. O’Brien’s evidence, but those conclusions were based upon the evidence, or lack of it, rather than extraneous matters, and therefore are findings capable of being revisited if it should transpire that the 17 volumes of colour-coded material does provide some support for the Fayleigh case. This, of course, requires the arbitrator to approach the material in a fair and open minded way. In circumstances where the arbitrator has a very full familiarity with all of the issues in the case, and where the significance of this issue is the impact of the documentation on those issues, and where nothing else is relied on to suggest the arbitrator cannot be trusted to reconsider the matter, and finally, and frankly, where this dispute is one which has gone on for far too long already, I would uphold the trial judge’s order as a sensible approach to bring finality to this case in the most effective way. I would, however, emphasise that the remittal of this matter is not merely a question of reading the documents, particularly at this remove from events. The arbitrator must approach this matter with a fully open mind and should be prepared, if necessary, to seek submissions from the parties as to how he should proceed, and if he considers the documents or any sample of them raise questions, then he should take such further steps as he considers are necessary to ensure that the entire matter is finally disposed of in a fair and comprehensive fashion.
MISCALCULATION
25 Fayleigh also relies on what it contends is a miscalculation of the award. Once the award was published, new solicitors for Fayleigh sought to raise a number of points, the most important of which was the question of the 17 volumes of documents. A further point was the calculation of the award. The solicitors argued that the annual fee payable was, in principle, the base fee (as defined in the agreement) as adjusted by reference to the Consumer Price Index. This, indeed, is how the management fee for 2008 was calculated in the claim, and consequently how the termination fee was also calculated. However, the solicitors for Fayleigh argued that the second schedule to the agreement provided that if the Gross Operating Profit for a year did not exceed 70% of the Minimum Gross Operating Profit, then the base fee payable would be reduced by 25%. The solicitors contended that this proviso applied in 2008, which meant that the claim both for the balance of management fees for 2008 and for the termination fee was overstated by 25%. Although there was some initial dispute as to the applicability of the second schedule, there does not now seem to be any serious contest on this calculation. What is, however, in issue is that the point was not raised in the arbitration, although this was not acknowledged in Fayleigh’s correspondence. Plazaway had claimed the total sum due and the only issue in the arbitration was Fayleigh’s liability to pay. The amount, therefore, was not disputed until after the award was made.
26 Fayleigh relies, however, on a dictum of McCarthy J. in Keenan v. Shield Insurance Co Ltd. [1988] I.R. 89 at p. 95 where he observed in passing that:
“Section 36 would appear to be the procedure appropriate, for example, to a case of a patent mistake in monetary calculation, in the giving or not giving of a particular credit, in an award that is on its face ambiguous or uncertain, in a case where the arbitrator, himself, seeks to rectify some error and, perhaps, where fresh evidence has become available subject to the standard rules of an appellate court in such cases.”
27 It is certainly undesirable that a final award made by an arbitrator should now be acknowledged to be wrong, even if arrived at without error on the part of the arbitrator. However, the Court expresses no view as to whether, if this issue was the only issue in these proceedings, the calculation issue raised by Fayleigh would come within this interpretation of section 36. The fact that this case is being remitted under s.36 for further consideration of the arbitrator will permit the arbitrator to correct this, which is perhaps an additional, if unanticipated, benefit of the order made by the Court. Justice will be met if there is an opportunity to correct this amount, subject, perhaps, to any requirement that the costs of doing so should be met by the party which failed to raise the point at the original arbitration. That, however, will be a matter for the arbitrator. The parties must now be fully familiar with all aspects of this case, since there has been a lengthy arbitration hearing and review hearings in the High Court and in this Court. They, together with their advisers, should be able to make a sensible judgment about the matter. The existence of a dispute resolution mechanism does not mean that parties should not seek to resolve their own disputes. The Court will dismiss this appeal and thus the matter will be remitted to the arbitrator. If the parties have not resolved their differences, the arbitrator should proceed to deal with the matter as soon as possible.
28 Plazaway also argued that in the event that the Court were to set aside the award in its entirety, the costs of the court proceedings should be awarded against the arbitrator, who was formally a party to the proceedings although he took no part in them. In the light of the Court’s decision on this matter, this issue does not arise. The Court was not referred to any authority as to the circumstances in which any such award would be appropriate, and accordingly makes no observation thereon, save to say that if any such application were to be advanced it would be essential that any arbitrator be put on notice unambiguously that such an unusual order was going to be sought.
