Claimant refused extension of time to appeal an arbitral award where payment of arbitrator's fees was delayed
The claimant applied for an extension of time to appeal against an arbitral award. The principles applicable to the court's discretion to extend time were summarised in Terna Bahrain v Al Shamsi and included the reasonableness of the claimant's delay (which in this case was for a period of 88 days beyond the 28 deadline provided for in the Arbitration Act 1996).
The initial period of delay arose from the parties' dispute as to who should pay the arbitrator's fees. The arbitrator's terms of engagement provided that the parties were jointly and severally liable (ie the claimant was liable for the fees if the defendant declined to pay). The defendant had refused to sign the terms of engagement and refused to pay half the arbitrator's fees following the award (because he believed that the arbitrator had had no jurisdiction to determine the dispute). The arbitrator had been entitled to refuse to release the award pending payment of his fees. The judge referred to earlier caselaw and confirmed that the onus had been on the claimant to pay the fees in order to preserve its right to challenge the award.
Further delay had occurred when the claimant eventually paid the arbitrator's fees by cheque sent by post, rather than using a quicker method of payment: "It was a matter for the claimant as to the method of payment used but the time taken for the funds to clear does not give him an excuse for the further delay". Thus, although there had not been a deliberate decision to delay making the application, the claimant had no reasonable explanation for the delay. The fact that the defendant had refused to pay any of the fees did not make any difference.