The claimant appealed an arbitral award (which had dismissed its counterclaim) on points of law arising out of section 41(3) of the Arbitration Act 1996. That section provides that the tribunal can dismiss a claim if it "is satisfied that there has been inordinate and inexcusable delay on the part of the claimant in pursuing his claim". The judge held as follows:
(1) The relevant limitation period (here, a shorter period of one year, agreed by the parties) was not "the" yardstick, but instead only "a" yardstick, albeit an important one: "The length of the relevant limitation period sets the context in which the nature of the period or periods of delay will be assessed, specifically whether the delay overall is inordinate or not. Whether or not delay is inordinate will always be a fact-sensitive exercise in each case". Although it would be wrong to dismiss a claim for want of prosecution where the limitation period had not yet expired, the fact that the parties have agreed a shorter limitation period demonstrates that they intended to proceed promptly with the arbitration. However, the judge also recognised that if the parties subsequently agree to extensions of time, that can be taken into account when assessing whether any delay has been inordinate.
(2) When assessing whether delay has been "inordinate", the period between the time the cause of action arose and the end of the contractual time limit is taken into account. In cases where there are periods of procedural activity and non-activity, it will normally be appropriate to assess individual periods of delay separately and distinctly, arriving at a cumulative picture of overall delay. However, there were no such separate periods on the facts in this case.
(3) The legal burden lies on the applying party to prove, on a balance of probabilities, that the inordinate delay in question is inexcusable. Although it is generally not helpful to speak in terms of a shift of evidential burden, it will normally be the responding party that identifies a credible excuse for the delay.