Stephen Smyth-Tyrrell and Another v Kenneth Peter Snowden
| Jurisdiction | England & Wales |
| Judge | Judge Paul Matthews |
| Judgment Date | 14 July 2017 |
| Neutral Citation | [2017] EWHC 2331 (Ch) |
| Date | 14 July 2017 |
| Docket Number | Case No: D31BS349 |
| Court | Chancery Division |
[2017] EWHC 2331 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Magistrates Court
Marlborough Street
Bristol BS1 3NU
His Honour Judge Paul Matthews
Case No: D31BS349
Guy Adams (instructed by Clarke Willmott LLP) appeared on behalf of the Claimant
William Batstone (instructed by Foot Anstey) appeared on behalf of the Defendant
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This is an application made on behalf of the landlords (as I will term them) in relation to a claim that they bring under the Arbitration Act 1996 to challenge the final award made by Mr Michael Townsend, dated 8 May 2017 in an arbitration against their tenant concerning notices, two to remedy, and two to quit, two holdings amounting to about 102 acres of land at Bosawsack, near Constantine in Cornwall. This was a statutory arbitration pursuant to the Agricultural Holdings Act 1986.
The application was made by an application notice which was issued on 6 June 2017. That date is within the period of 28 days which is laid down by section 70(3) of the Arbitration Act, which provides:
"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."
However, the landlords here had not issued their claim in that 28 day period; what they did was to issue the application notice within that period. As it happens, they have now issued a claim form, and it was, I think, issued on 4 or 5 July 2017, some 30 days out of time.
The position is that both parties have asked the arbitrator to deal with points raised on the arbitration award under section 57, but that has not yet happened. I have been shown authorities that bear on the question as to whether and how far any application to the arbitrator under section 57 counts as an arbitral process of appeal or review within section 70(3). As it appears, that it not a matter entirely free from doubt.
However, the points which are raised by the landlords in the section 57 process contained in a letter written to the arbitrator on 26 May 2017 are very much narrower than the points which are taken in the claim as set out in the claim form, although of course they are included. So if there is some kind of extension automatically gained because of the section 57 procedure, it is still continuing. It is only respect of the three or four points raised in that letter and not the larger number of points raised in the claim.
The criteria which the court must apply in considering whether to grant an extension, here of about 30 days for the issue of the claim, might have been thought to be the general discretion under the Civil Procedure Rules. There is after all an argument to say that, since this is a compulsory arbitration, and not by the will of the parties, the court should be generous in exercising its discretion to extend time, in the same way and on the same principles as it does in ordinary litigation. However that may be, there are authorities which I have been shown, including a dictum of Longmore LJ in Peel v Coln Park LLP [2010] EWCA Civ 1602 and the decision of Morgan J in Compton Beauchamp Estates Ltd v Spence [2013] EWHC 1101 (Ch), which indicate that, notwithstanding that the Agricultural Holdings Act arbitration is in effect compulsory, it is the usual Arbitration Act principles which apply in deciding whether to extend time. I am not strictly speaking bound by obiter dicta from the Court of Appeal, though of course they are entitled very great respect, but the High Court does not refuse to follow a decision of the High Court unless it is satisfied that it is wrong. On the material before me this morning I cannot say that I am so satisfied. Accordingly, I will proceed on the basis that I should apply the criteria set out in the Arbitration Act.
These criteria are helpfully summarised in authorities which have been cited to me and in particular the decision of Teare J in the case of K v S [2015] EWHC 1945 (Comm). At paragraph 32 the judge cited extensively from the decision of Popplewell J in Terna Bahrain Holding Company Wll v Al Shamsi [2013] 1 Lloyd's Report 87:
"27. The principles regarding extensions of time to challenge an arbitration award have been addressed in a number of recent authorities, most notably in Kalmneft v Glencore [2002] 1 Lloyd's Rep 128, Nagusina Naviera v Allied Maritime Inc. [2003] 2 CLC 1, L Brown & Sons Limited v Crosby Homes (Northwest) Limited [2008] BLR 366, Broda Agro Trading v Alfred C Toepfer International [2011] 1 Lloyd's Rep 243, and Nestor Maritime v Sea Anchor Shipping [2012] 2 Lloyd's Rep. 144, from which I derive the following principles:
(1) Section 70(3) of the Act requires challenges to an award under sections 67 and 68 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...
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