Court Takes Hard Line On Non-Payment Of Arbitrator's Fees

Background

In Rollitt v Ballard [2017] EWHC 1500 (TCC), an ad hoc arbitration with the seat in England, the Claimant applied in February 2016 for a ruling that the arbitrator did not have jurisdiction. On 12 May 2016 the arbitrator notified the parties that the Award on the preliminary issue had been completed and that it would be published on payment of cleared funds in respect of his fees of £4,052.88. The parties disputed between themselves who was liable for the fees and, as a consequence, the Claimant did not send a cheque for the fees until 19 July 2016. On 8 August 2016, after receiving cleared funds, the arbitrator sent the Award dated 12 May 2016 to the parties.

On 5 September 2016 the Claimant issued an Arbitration Claim Form seeking permission to challenge the Award. At the same time the Claimant applied for an extension of time for issuing the Claim Form as under section 70(3) of the Arbitration Act 1996 the application for permission to appeal should have been filed within 28 days of the date of the Award, viz on or before 9 June 2016.

Decision

Notwithstanding the time limit in section 70(3) of the Arbitration Act 1996, section 79 gives the court power to extend the deadline if satisfied that otherwise a substantial injustice would be done. This was considered in Terna v Al Shamsi [2012] EWHC 3283 (Comm) which decided that the primary factors to consider when deciding whether to extend a deadline are:

the length of the delay; whether the delaying party was acting reasonably in allowing the time limit to expire; and whether others had contributed to the delay. Although the judge found that the Claimant had not deliberately delayed its request for an extension of time, the judge was of the opinion that the Claimant had no reasonable explanation for the 88 day further delay after 9 June 2016. Critically, the judge found that the Claimant had acted unreasonably in...