HT-2024-000328 - [2025] EWHC 2926 (TCC)

Fourthly, I turn to the strength of the application. The material provisions of the Arbitration Act are at section 68, challenging the award by 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 duties of tribunal) ...

(3)

If there is shown to be a 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.

In this case it is said that the tribunal overlooked and accordingly failed to take into account relevant email communication between the parties that demonstrated that the Claimant had in fact provided the cylinder and radiator sizing on 8 December 2020, not, as found by the Arbitrator, on 18 December 2020 and therefore had advanced the plumbing design within the time period specified by the improvement notice. It is said that the Tribunal’s failure to take into account these communications, which were material to determine the issues in the first part of the arbitration, amounted to a failure to act fairly and impartially between the parties in breach of its duties under section 33 of the Act.

The principles applicable to a challenge under section 68(2)(a) of the Act were set out in the Terna Bahrain case at [85], in which the Judge stated that:

“(2)

The test of a serious irregularity giving rise to substantial injustice involves a high threshold. The threshold is deliberately high because the major purpose of the 1996 Act was to reduce drastically the extent of intervention by the courts in the arbitral process.

(3)

A balance has to be drawn between the need for finality of the award and the need to protect parties against the unfair conduct of the arbitration. In striking this balance, only an extreme case would justify the court’s intervention. Relief under section 68 will only be appropriate where the tribunal has gone so wrong in its conduct of the arbitration and where its conduct is so far removed from what could be reasonably expected from the arbitral process, that justice calls out for it to be corrected.

(4)

There will generally be a breach of section 33 where a tribunal decides the case on the basis of a point which one party has not had a fair opportunity to deal with. If the tribunal thinks that the parties have missed the real point, which has not been raised as an issue, it must warn the parties and give them an opportunity to address the point.

(5)

There is, however, an important distinction between on the one hand a party having no opportunity to address a point on his opponent’s case and on the other hand a party failing to recognise or take the opportunity which exists. The latter will not involve a breach of section 33 or a serious irregularity.

(6)

The requirement of substantial injustice is additional to that of a serious irregularity and the applicant must establish both.

(7)

In determining whether there has been substantial injustice, the court is not required to decide for itself what would have happened in the arbitration had there been no irregularity. The applicant does not need to show that the result would necessarily or even probably have been different. What the applicant is required to show is that had he had an opportunity to address the point, the tribunal might well have reached a different view and produced a significantly different outcome”.

The Defendants rely upon the remarks of Teare J in the case of UMS Holding v Great Station Properties [2017] EWHC 2398. Following a review of the relevant authorities, he considered the law regarding allegations that an arbitral tribunal has overlooked evidence at [28]:

“… A contention that the tribunal has ignored or failed to have regard to evidence relied upon by one of the parties cannot be the subject matter of an allegation of a serious irregularity within section 68(2)(a) or (d), for several reasons:

i)

First the tribunal’s duty is to decide the essential issues put to it for decision and to give its reasons for doing so. It does not have to deal in its reasons with each point made by a party in relation to those essential issues or refer to all the relevant evidence.

ii)

Second, the assessment and evaluation of such evidence is a matter exclusively for the tribunal. The court has no role in that regard.

iii)

third, where a tribunal in its reasons has not referred to a piece of evidence which one party says is crucial, the tribunal may have (i) considered it but have regarded it as not determinative, (ii) considered it but assessed it as coming from an unreliable source, (iii) considered it but misunderstood it, or overlooked it. There may be other possibilities. Were the court to seek to determine why the tribunal had not referred to certain evidence, it would have to consider the entirety of the evidence which was before the tribunal and which was relevant to the decision under challenge. Such evidence would include not only documentary evidence but also the transcripts of factual and expert evidence. Such an enquiry (in addition to being lengthy …) would be an impermissible exercise for the court to undertake because it is the tribunal not the court that assesses the evidence adduced by the parties. Further, for the court to decide that the tribunal had overlooked certain evidence, the court would have to conclude that the only inference to be drawn from the tribunal’s failure to mention such evidence was that the tribunal had overlooked it. But the tribunal may have had a different view of the importance, relevance or reliability of the evidence from that of the court and so the required inference cannot be drawn.

iv)

Fourth, section 68 is concerned with due process. Section 68 is not concerned with whether the tribunal has made the right finding of fact, any more than it is concerned with whether the tribunal has made the right decision in law. The suggestion that it is a serious irregularity to fail to deal with certain evidence ignores that principle. By choosing to resolve disputes by arbitration, the parties clothe the tribunal with jurisdiction to make a wrong finding of fact.”

In this case, the claimant’s complaint falls below the high threshold imposed by section 68, even on a brief perusal of the documents that are currently before the court.

First the alleged error regarding the date on which the relevant information was supplied by the claimant was based on Mr Betsy’s witness statement. It is referred to by the Arbitrator in terms in the Award. It is fanciful to suggest that the Arbitrator should have rejected Mr Betsy’s clear and direct evidence on the date on which the information was supplied, and trawled through the documentation to check whether the date given by him was in fact correct.

Secondly, there was no attempt to correct Mr Betsy’s witness statement during the course of the Arbitration.

Third, the Arbitrator’s decision on the issue of whether the Claimant was in default, was not simply based on the date on which the information was provided. The complaint, which was resolved in favour of the Defendants, was that the Claimant had failed to advance the planning design and failed to provide the requested details within the timetable requirements set out in the default notice. For those reasons, I consider that on the documents before the Court the proposed arbitration challenge is intrinsically weak.

I am confident that it is appropriate for the Court to consider the merits of the challenge at this procedural hearing because it was an arbitration on the documents. Therefore, the Court has before it the documents on which the parties rely.

In all of the circumstances, this would not be an appropriate case in which to grant the extension of time necessary to extend time for issue of the Arbitration Claim Form from 24 September 2024 to 8 October 2024. As a result, any delay beyond 8 October 2024 is irrelevant to the Court’s consideration.

For all those reasons it follows that the Court will grant the Defendants’ application challenging jurisdiction and dismiss the Claimant’s application for an extension of time.