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

Regardless of any delay caused by the administrative error or other malfunction of CE file, the Claimant needs an extension of time from 24 September 2024 to 8 October 2024 for completely unrelated reasons.

Section 70(3) of the Arbitration Act 1996 provides that 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.

It does not seem to be in dispute that there was no arbitral process of appeal or review in this case. Therefore, the applicable date from which time runs is the date of the Award, in this case 27 September 2024.

The strict time limits for any challenges to arbitration awards reflect the stated purpose of the Arbitration Act 1996 to obtain a fair resolution of disputes by a tribunal without unnecessary delay or expense and to promote the finality of arbitration awards.

The principles applicable to the Court’s discretion to extend time were summarised by Popplewell J, as he then was, in the case of Terna Bahrain Holding Company v Al Shamsi [2012] EWHC 3283 at [27] to [31]. At [27] the Judge observed that:

“(1)

Section 73 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 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 determination of the application by the court might now have;

(vi)

the strength of the application;

(vii)

whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the application determined.

(3)

Factors (i), (ii) and (iii) are the primary factors.”

The judge went on to make additional observations:

“[28] … First, the length of delay must be judged against the yardstick of the 28 days provided for in the Act. Therefore, a delay measured even in days is significant. A delay measured in many weeks or in months is substantial.

[29] Secondly, factor (ii) involves an investigation into the reasons for the delay. In seeking relief from the court, it is normally incumbent upon the applicant to adduce evidence which explains his conduct, unless circumstances make it impossible…

[30] Thirdly, factor (ii) is couched in terms of whether the party who has allowed the time to expire had acted reasonably. This encompasses the question whether the party has acted intentionally in making an informed choice to delay making the application …

[31] Fourthly, the court’s approach to the strength of the challenge application will depend upon the procedural circumstances in which the issue arises. On an application for an extension of time, the Court will not normally conduct a substantial investigation into the merits of the challenge application, since to do so would defeat the purposes of the Act. However, if the court can see on the material before it that the challenge involves an intrinsically weak case, it will count against the application for an extension, whilst an apparently strong case will assist the application. Unless the challenge can be seen to be either strong or intrinsically weak on a brief perusal of the grounds, this will not be a factor which is treated as of weight in either direction on the application for an extension of time. If it can readily be seen to be either strong or weak, that is a relevant factor, but it is not a primary factor because the court is only able to form a provisional view of the merits, a view which might not be confirmed by a full investigation of the challenge, with the benefit of the argument which would take place at the hearing of the application itself if the extension of time were granted.”

I bear in mind all of the above guidance in assessing the merits of the Claimant’s application in this case.