[2025] EWHC 2126 (Comm)

Fourth, any allegations of fraud must be pleaded squarely and fairly, not in a mealy-mouthed way. This is not a requirement specific to arbitration claims but applies more widely: see Three Rivers District Council v Governor and Company of the Bank of England (No.3) [2003] 2 AC 1, per Lord Millett at [184] et seq.; and JSC Bank of Moscow v Kekhman [2015] EWHC 3073 (Comm), per Flaux J (as he then was) at [20]. In Playboy Club London Ltd v Banca Nazionale Del Lavoro SpA [2018] EWCA Civ 2025, Sales LJ (with whom Gloster LJ agreed) said this (at [46]):

“The pleading of fraud or deceit is a serious step, with significance and reputational ramifications going well beyond the pleading of a claim in negligence. Courts regard it as improper, and can react very adversely, where speculative claims in fraud are bandied about by a party to litigation without a solid foundation in the evidence. A party risks the loss of its fund of goodwill and confidence on the part of the court if it makes an allegation of fraud which the court regards as unjustified, and this may affect the court’s reaction to other parts of its case. Moreover, as Birss J observed in Property Alliance Group v Royal Bank of Scotland [2015] EWHC 3272 (Ch) at [40], allegations of fraud ‘can cause a major increase in the cost, complexity and temperature of an action.’ For these reasons parties are well-advised, and indeed enjoined according to usual pleading principles, to be reticent before pleading fraud or deceit.”

Where a party wishes to adduce a fresh ground of challenge after the expiry of the s.70(3) 28 days, two authorities set out the approach to be adopted. The first is the decision of Cooke J in Leibinger, to which I have already referred; the second is the decision of Field J in Konkola Copper Mines plc v U&M Mining Zambia Ltd [2014] EWHC 2210 (Comm).

Leibinger concerned an out-of-time application to amend a s.67 application. The claim form had been served within the 28-day period, but noted on its face that further particulars and witness evidence would follow. Well after the expiry of the 28-day period, the claimant sought to provide particulars, including a ground not contained in the claim form at all. The respondent objected; the claimant applied to file and serve detailed particulars and written evidence 72 days after the statutory 28-day deadline. Cooke J refused permission. At [31], he held (my emphasis):

“As the defendant points out, the claimants seek to undermine and circumvent the statutory time limits provided by Section 70(3) of the 1996 Act by issuing a Claim Form without detailed particulars and without evidence and then making an application to file and serve detailed particulars and written evidence 72 days after the statutory deadline, after serving those particulars and evidence some eight weeks after that deadline. These are not short periods in the context of the 28 day period allowed by statute. The public policy which underlies arbitration and the finality of awards means that extensions of time, particularly on a retrospective basis, are not lightly given. Section 73(2) of the 1996 Act provides that where an arbitral tribunal decides that it has jurisdiction and a party who could have questioned that ruling by challenging the award does not do so within the time allowed by the statute, ‘he may not object later to the tribunal substantive jurisdiction on any ground which was the subject of that ruling’. Whilst this is not a case where the Claim Form was issued out of time (as in Kalmneft JSC v Glencore International AG [2001] 2 AER (Comm) 577), the principles to be applied are not dissimilar as appears from the decision of Colman J in Westland Helicopters Limited v Sheikh Salah al-Hejailan (1) [2004] 2 LLR 523 at paragraphs 38-42.”

Konkola contained a pattern of facts similar to a s.68 challenge. The claim form was filed within the statutory period. It was itself defective because it referred only to the grounds contained in two witness statements. Some 81 days after the award was published (i.e., 53 days out of time), the claimant served further witness evidence alleging fresh and previously unpleaded irregularities. The respondent objected; the claimant applied to amend. Field J rejected the application, applying the Colman Principles (see [‎25] above). At [18], the learned judge said this (my emphasis):

“The parties are entitled to know the specific grounds which are to be advanced in challenge to an arbitration award not only because they must know the case to be met but also because they should know the extent to which what would otherwise be a valid award is challenged. One of the objectives of arbitral proceedings is to achieve the speedy determination of disputes. It is accordingly very important that time requirements prescribed by the Act are strictly complied with and only allowed to be departed from in exceptional cases. No reasonable excuse has been proffered to the court for the failure to plead the grounds now sought to be introduced at the time the Arbitration Claim Form was issued.”

As Popplewell J said in Terna (at [27(3)]), the three most important of the Colman Principles are: