Ian Rollitt (trading as CD Consult) v Christopher Leonard Ballard
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell DBE,Mrs Justice O'Farrell |
| Judgment Date | 23 June 2017 |
| Neutral Citation | [2017] EWHC 1500 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2016-000235 |
| Date | 23 June 2017 |
[2017] EWHC 1500 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice O'Farrell DBE
Case No: HT-2016-000235
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an application by the claimant, Ian Rollitt, for:
i) an extension of time for appealing against an arbitration award dated 12 May 2016 made by Mr D J Cartwright MA, FRICS, FCIArb, FAMINZ(Arb), MEWI, MaPS, FFB ("the Award") pursuant to section 79(1) of the Arbitration Act 1996 ("the Act");
ii) permission to adduce further grounds and evidence in support of the application for an extension of time;
iii) permission to appeal pursuant to section 69 of the Act on a point of law; and
iv) permission to challenge a further arbitration award dated 24 October 2016 ("the Costs Award") for serious irregularity pursuant to section 68 of the Act.
The application is opposed by the defendant, Christopher Ballard, on the grounds that the appeal was brought outside the 28 day time limit for such applications provided by section 70(3) of the Act and there are no sufficient grounds for extending the time limit.
The background to the dispute can be summarised as follows. In June 2007 the parties entered into a contract under which the defendant engaged the claimant to provide project management services in relation to property known as High Cane, Golf Club Road, Sandy Lane, St, James, Barbados.
A dispute arose as to the fees payable in respect of the project management services provided and on 9 November 2010 the claimant issued a notice of arbitration. The first arbitrator appointed resigned and Mr Cartwright was appointed by the CIArb on 4 November 2015.
On 3 February 2016 the defendant made an application to the arbitrator for a ruling on substantive jurisdiction pursuant to section 30 of the Act. The arbitrator determined that the contract incorporated by reference the RICS Project Management Agreement and conditions of Engagement (Third Edition) ("the PMA Conditions") but that the reference to the PMA Conditions was not sufficient to incorporate the arbitration agreement. Further, there was a tiered dispute resolution procedure that required the claimant to adjudicate before any entitlement arose to refer the dispute to arbitration. In any event, the defendant was operating as a consumer for the purpose of the Unfair Terms in consumer Contract Regulations 1999 ("the UTCCR") and the arbitration agreement would, even if incorporated, be invalid.
The award was dated 12 May 2016. On that date the arbitrator sent an email to the parties' representatives, informing them that the Award on the preliminary issues had been completed and that it would be published on cleared payment for his fees of £4,052.88 (including VAT).
In accordance with section 70(3) of the Act, the statutory 28 day period for an application for permission to appeal under section 69 of the Act expired on 9 June 2016.
On 19 July 2016 the claimant sent a cheque in respect of the arbitrator's fees by post.
On 8 August 2016, following receipt of the cleared funds, the arbitrator issued the Award.
On 5 September 2016 the claimant issued the Arbitration Claim Form in these proceedings, seeking an extension of time and permission to challenge the award pursuant to sections 69 and 79 of the Act.
On 24 August 2016 the defendant claimed its costs in respect of the jurisdictional challenge and, in the absence of payment, by letter dated 13 September 2016 applied to the arbitrator for an award in respect of the same.
On 14 September 2016 the claimant wrote to the arbitrator inviting him to await the outcome of the arbitration challenge before proceeding to deal with the defendant's costs application and raised a question as to the arbitrator's jurisdiction by reason of the defendant's failure to sign the arbitrator's terms and conditions.
On 29 September 2016 the arbitrator notified the parties that (i) both parties had conferred jurisdiction on the arbitrator to determine the defendant's challenge on jurisdiction and (ii) the arbitrator had power to award costs in respect of the jurisdictional challenge.
On 24 October 2016 the arbitrator issued the Costs Award.
On 21 November 2016 the claimant issued an arbitration application seeking to adduce further grounds and evidence in support of its application for an extension of time and seeking permission to challenge the Costs Award on the basis of serious irregularity.
The issues to be determined are: (i) whether it is appropriate to extend the period for issuing the arbitration claim from 9 June 2016 until 5 September 2016; (ii) if so, whether permission to appeal should be granted; and (iii) whether permission to amend should be granted to challenge for serious irregularity.
The material provisions of the Act are as follows:
"68 Challenging the award: serious irregularity
(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award…
(2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant –
(a) failure by the tribunal to comply with section 33 (general duty of tribunal) …
(3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may –
(a) remit the award to the tribunal, in whole or in part, for reconsideration,
(b) set the award aside in whole or in part, or
(c) declare the award to be of no effect, in whole or in part.
The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.
69 Appeal on points of law
(1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings…
(2) An appeal shall not be brought under this section except –
(a) with the agreement of all the other parties to the proceedings, or
(b) with the leave of the court.
The right to appeal is also subject to the restrictions in section 70(2) and (3).
(3) Leave to appeal shall be given only if the court is satisfied –
(a) that the determination of the question will substantially affect the rights of one or more of the parties,
(b) that the question was one which the tribunal was asked to determine,
(c) that, on the basis of the findings of fact in the award—
(i) the decision of the tribunal on the question is obviously wrong, or
(ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and
(d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question.
70 Challenge or appeal: supplementary provisions.
(1) The following provisions apply to an application or appeal under section 67, 68 or 69…
(3) Any application or appeal must be brought within 28 days of the date of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process…
79 Power of court to extend time limits relating to arbitral proceedings.
(1) Unless the parties otherwise agree, the court may by order extend any time limit agreed by them in relation to any matter relating to the arbitral proceedings or specified in any provision of this Part having effect in default of such agreement…
(2) An application for an order may be made—
(a) by any party to the arbitral proceedings (upon notice to the other parties and to the tribunal), or
(b) by the arbitral tribunal (upon notice to the parties).
(3) The court shall not exercise its power to extend a time limit unless it is satisfied—
(a) that any available recourse to the tribunal, or to any arbitral or other institution or person vested by the parties with power in that regard, has first been exhausted, and
(b) that a substantial injustice would otherwise be done."
There are strict time limits for any challenges to arbitration awards, reflecting the stated purpose of the Act to obtain a fair resolution of disputes by a tribunal without unnecessary delay or expense and to promote the finality of arbitration awards.
Application for an extension of time
The principles applicable to the court's discretion to extend time were summarised by Popplewell J. in Terna Bahrain Holding Co. WWL v Al Shamsi [2012] EWHC 3283 at
to [31]:
"27. The principles regarding extensions of time to challenge an arbitration award have been addressed in a number of recent authorities, most notably in AOOT Kalmneft v Glencore International AG [2002] 1 Lloyd's Rep.128, Nagusina Naviera v Allied Maritime Inc [2002] EWCA Civ 1147, L Brown & Sons Ltd v Crosby Homes (North West) Ltd [2008] BLR 366, Broda Agro Trading (Cyprus) Ltd v Alfred C Toepfer International GmbH [2011] 1 Lloyd's Rep.243, and Nestor Maritime SA v Sea Anchor Shipping Co Ltd [2012] 2 Lloyd's Rep.144, from which I...
To continue reading
Request your trial
-
Ng Tze Chew Diana v Aikco Construction Pte Ltd
...others [2012] EWHC 3283 (Comm) at [65]: delay of almost 17 weeks; Ian Rollitt (trading as CD Consult) v Christopher Leonard Ballard [2017] EWHC 1500 (TCC) (“Rollitt”) at [21]: delay of 88 days; S v A and B [2016] EWHC 846 (Comm) (“S v A and B”) at [31]: delay of 74 days; Squibb at [20]: del......
-
Court Takes Hard Line On Non-Payment Of Arbitrator's Fees
...Background Rollitt v Ballard [2017] EWHC 1500 (TCC), an ad hoc arbitration with the seat in England, the Claimant applied in February 2016 for a ruling that the arbitrator did not have jurisdiction. On 12 May 2016 the arbitrator notified the parties that the Award on the preliminary issue h......
-
Arbitration
...[58]–[62], per Edwards-Stuart J; Celtic Bioenergy Ltd v Knowles Ltd [2017] EWHC 472 (TCC) at [112], per Jeford J; Rollitt v Ballard [2017] EWHC 1500 (TCC); Squibb Group Ltd v Pole 2 Pole Scafolding Ltd [2017] EWHC 2394 (TCC). 2092 ARBITRATION 25.233 he grounds upon which a court will interf......
-
Table of cases
...3729 (TCC) III.26.305 rolf v De Guerin [2011] BLr 221 III.23.18 rolle Family & Co Ltd v rolle [2017] UKpC 35 I.2.90 rollitt v Ballard [2017] EWhC 1500 (TCC) III.25.232 ccclxxi TaBLE OF CaSES rolls-royce New Zealand Ltd v Carter holt harvey Ltd (NZ Court of appeal, Ca259/02, 7 Oct 2004) II.1......