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

It is common ground that in accordance with section 70(3) of the Arbitration Act 1996, the statutory 28-day period for a challenge to the Award for serious procedural irregularity under section 68 of the Act expired on 24 September 2024.

A draft Arbitration Claim Form, seeking to challenge the Award under section 68(2)(a) of the Act, on the basis that the Tribunal failed to comply with its duty under section 33 of the Act, was dated 24 September 2024. As that was the latest day on which the Claim Form could be issued, an application without notice was made, quite properly, requesting an extension of time to 1 October 2024.

Unfortunately, this is where things started to go wrong. The Claim Form was filed incorrectly, initially on 24 September and then again on 4 October 2024. As explained by court staff in communications dated 3 October and 8 October 2024, exhibited to Mr Sutton’s third witness statement served on 23 September 2025, the Claim Form needed to be filed on the CE file system as a Part 8 Claim so as to generate the appropriate fee to be paid for the start of the proceedings. That had not been done and, as a result, an incorrect fee had been paid, for which there is evidence in the documents exhibited to Mr Sutton’s statement.

Further, as the Claim Form was now being issued beyond the expiry date for challenge to the Award, the Claimant needed to make any application for an extension of time on notice to the Defendants (within the Claim Form) so that they would have an opportunity to oppose it, as provided in CPR 62.9.

On 8 October 2024, the Claimant managed to file correctly on CE file the Arbitration Claim Form in these proceedings, seeking to challenge the Award under section 68(2)(a) of the Act. Additionally, an application notice dated 4 October 2024 was also filed, seeking an extension of time for issue of the Claim Form to 4 October 2024. Contrary to the requirement of CPR 62.9(3), the application for an extension of time was not made on notice to the Defendants.

On 9 October 2024, the Claim Form and application notice were recorded as filed on 8 October 2024 on CE file.

On 14 October 2024, an order for an extension of time for issue of the Claim Form to 4 October 2024 was approved by Joanna Smith J. As this was made without notice to the Defendants, they would have been entitled, if they had known about it, to ask the Court to review, revise or set aside the order. In any event, in this case the Arbitration Claim Form was filed with the Court after 4 October 2024. Therefore, on any view, the Claimant would need to seek a further extension of time.

Unfortunately, it appears that a court seal was not affixed to the Claim Form on 8 or 9 October 2024, whether by administrative error or malfunction of the system. That was confirmed on 20 November 2024 by court staff in a telephone conversation with Mr Sutton of Clive Sutton solicitors, acting for the Claimant. It also appears that the seal on the Claim Form was then backdated to 8 October 2024, without anyone appreciating the impact that it would have on the time for service.

Thereafter, Mr Sutton took prompt steps to inform Mr Thornton of Wilsons solicitors, acting for the Defendants, of the position. Mr Thornton agreed that service could be effected by email.

On 26 November 2024, the Claim Form was served on the Defendants.

On 9 December 2024, the Defendants acknowledged service and indicated that they would challenge jurisdiction. The Defendants’ application challenging jurisdiction was issued on 19 December 2024.

Mr Williams, counsel for the Claimant, suggests that the Defendants should have acted earlier in order to apply to set aside the Order of 14 October 2024. However, in circumstances where the Claim Form appeared to have been issued on 8 October 2024, the clear issue for the Defendants at that time was whether it had been served out of time and, if so, whether that gave them a ground for challenging jurisdiction. Having indicated that a challenge to jurisdiction would be made pursuant to CPR 11, I accept Mr Dawson’s explanation that a separate application seeking to set aside the order of 14 October was not made in order to preclude any suggestion that they had submitted to the jurisdiction of the Court.