Squibb Group Ltd v Pole 2 Pole Scaffolding Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell |
| Judgment Date | 29 September 2017 |
| Neutral Citation | [2017] EWHC 2394 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 29 September 2017 |
| Docket Number | Case No: HT-2017-000231 |
[2017] EWHC 2394 (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-2017-000231
Case No: HT-2017-000190
In An Arbitration Claim
In The Matter of an Arbitration
Paper application determined without a hearing in accordance with CPR PD62
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 in Claim No HT-2017-000231, Squibb Group Limited ("SGL"), for an extension of time for appealing against an arbitration award dated 27 April 2017 made by Mr John L Riches, FRICS, FCInstCES, FCIOB, FCIArb, MAE ("the Award") and for permission to appeal on a point of law pursuant to section 69 of the Arbitration Act 1996 ("the Act").
The application is opposed by the defendant, Pole 2 Pole Scaffolding Limited ("P2P"), 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.
There is also an application by SGL, the defendant in Claim No HT-2017-000190, to set aside this court's order dated 17 August 2017 granting P2P permission to enforce the Award and seeking an order staying P2P's application for permission to enforce the Award pending SGL's application for permission to appeal and the determination of any appeal.
This matter arises out of a contract entered into by the parties in about June/July 2014 under which P2P agreed to provide scaffolding in respect of demolition works carried out by SGL at 28 Great Tower Street, London.
A dispute arose between the parties as to sums claimed by P2P in respect of additional scaffolding works carried out and sums counterclaimed by SGL in respect of delays and defective work.
On 13 January 2016 the parties entered into an ad hoc arbitration agreement in respect of the disputes and Mr Riches was appointed as the arbitrator.
On 27 April 2017 the Award was made, directing that SGL should pay P2P £87,052.43 plus interest in the sum of £10,567.76, a total of £97,620.19 plus VAT, in respect of P2P's claims. No sums were awarded in respect of SGL's counterclaims.
On 27 April 2017 the arbitrator sent an email to the parties' representatives, informing them that the Award had been completed and that it would be released following payment in respect of his fees and expenses.
On 5 May 2017 P2P paid its half share of the arbitrator's fees and expenses but SGL failed to pay its share until 26 June 2017, following an indication by the arbitrator that he would commence legal proceedings to recover them.
On 26 June 2017, following receipt of his fees and expenses, the arbitrator published the Award.
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 25 May 2017.
On 11 August 2017 P2P issued an Arbitration Claim Form, seeking permission to enforce the Award pursuant to section 66 of the Act. On 17 August 2017 an order was made, granting P2P permission to enforce the Award in the same manner as a judgment or order of the court to the same effect.
On 17 August 2017 SGL issued an Arbitration Claim Form, seeking an extension of time and permission to challenge the award.
On 31 August 2017, SGL issued an application seeking to set aside the order dated 17 August 2017 and for a stay of P2P's application pending determination of SGL's application for permission to appeal and any appeal.
The issues to be determined are whether it is appropriate to extend the period for issuing the arbitration claim and, if so, whether permission to appeal should be granted. Further, the court must consider whether the order of 17 August 2017 should be set aside and whether there should be a stay on enforcement of the award pending determination of any appeal.
The material provisions of the Act are as follows:
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…
80 Notice and other requirements in connection with legal proceedings.
(5) Where any provision of this Part requires an application or appeal to be made to the court within a specified time, the rules of court relating to the reckoning of periods, the extending or abridging of periods, and the consequences of not taking a step within the period prescribed by the rules, apply in relation to that requirement.
CPR 62.9 and CPR 3.1 make provision for the court to extend time for making an application for permission to appeal even after the 28 day period has expired.
The applicable principles to the application for an extension of time
The principles applicable to the court's discretion to extend time in respect of such arbitration claims were set out by this court in Rollitt v Ballard [2017] EWHC 1500, although it should be noted that the application in that case should have been made and determined under section 80 of the Act and not section 79: AOOT Kalmneft v Glencore International AG [2001] EWHC 464 per Colman J at paras. 43 – 48.
I have considered the application for an extension of time by reference to the relevant factors identified by Popplewell J. in Terna Bahrain Holding Co. WWL v Al Shamsi [2012] EWHC 3283 at [27] to [31]:
"27. …
(1) Section 70(3) of the Act requires challenges to an award … to be brought within 28 days. This relatively short period of time reflects the principle of speedy finality which underpins the Act, and which is enshrined in section 1(a). The party seeking an extension must therefore show that the interests of justice require an exceptional departure from the timetable laid down by the Act. Any significant delay beyond 28 days is to be regarded as inimical to the policy of the Act.
(2) The relevant factors are:
(i) the length of the delay;
(ii) whether the party who permitted the time limit to expire and subsequently delayed was acting reasonably in the circumstances in doing so;
(iii) whether the respondent to the application or the arbitrator caused or contributed to the delay;
(iv) whether the respondent to the application would by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application were permitted to proceed;
(v) whether the arbitration has continued during the period of delay and, if so, what impact on the progress of the arbitration, or the costs incurred in respect of the arbitration, the...
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