Whether an award should be set aside because of the delay (of over a year) in publishing it


The claimant applied to set aside an award under section 68 of the Arbitration Act 1996 on the basis that the inordinate delay by the arbitrator in producing the award (it was published 376 days after a three day hearing) was failure by the arbitrator to comply with his general duties under section 33 of the Act. The arbitrator had repeatedly apologised for the delay which he claimed was due to pressure of work and neither party had chased the award or complained about the delay before it was published.

Flaux J noted that, without more, delay alone will not amount to a serious irregularity under section 68, since an otherwise unimpeachable award will have caused the applicant no substantial injustice. He commented: "However, it does not follow that extensive delay, let alone inordinate delay of twelve months in publishing an Award, should be permissible". The solution to the excuse of pressure of work was to take on fewer appointments, he said. Flaux J also referred to Clause 20 of the LMAA terms which provides that an award should "normally be available within not more than six weeks from the close of the proceedings". However, that was not an "immutable rule". He also rejected the defendant's argument that the remedy for the claimant would have been to apply to remove the arbitrator under section 24: the claimant had not lost the right to complain about the delay after the award was produced by failing to make such an application or by failing to complain at the time.

The judge concluded that the application failed on the basis that the claimant could not show serious injustice – namely, that the arbitrator might well have reached a different conclusion more favourable to the claimant in the absence of the delay: "If the Award is otherwise unimpeachable and has dealt with all the issues, it makes no difference whether it was produced a month or twelve months after the hearing, since however long the Award has taken to produce, the applicant cannot show that it has caused or will cause substantial injustice. That is why delay on its own does not amount to serious irregularity".