Ashfords recently successfully acted for the Defendant in a case relating to delay in challenging an Arbitrator's Award on the basis of an alleged serious irregularity and on a point of law. Under the Arbitration Act 1996 ("the Act"), the Court has jurisdiction to consider an appeal against an Arbitrator's Award on the basis of only limited grounds set out in the Act.

By virtue of section 70 of the Act, challenges under the Act must be brought within 28 days of the date of the award in question or any related arbitral process of appeal unless the Court extends time (pursuant to section 79 of the Act).

In the recent case of Ian Rollitt (trading as CD Consult) ("Rollitt") v Christopher Ballard ("Ballard") [2017] EWHC 1500 (TCC), in which we acted on behalf of Ballard, the Court has considered when an extension to the time for bringing an appeal should be permitted.

The appeal in question related to an award made by an Arbitrator stating that he did not have substantive jurisdiction to consider the claim brought by Rollitt. The award was dated 12 May 2016. The Arbitrator confirmed to the parties' representatives on 12 May 2016 that the award had been completed and would be published after payment of his fees. It is common practice on the part of Arbitrators to withhold publication of an award pending payment of fees. This practice is in keeping with section 56 of the Act. Payment was not received in full for the Arbitrator's fees until 19 July 2016 by cheque from Rollitt (some 40 days after the expiry of the 28 day period). The Arbitrator then released his award, dated 12 May 2016, on 08 August 2016, following clearance of the cheque.

Despite an already substantial delay following the end of the 28 day period specified in the Act, Rollitt waited a further 28 days to submit its Arbitration Claim Form on 05 September 2016, seeking an extension of time and permission to challenge the award. Rollitt's application was, however, refused.

Decision

In coming to her decision to refuse the application, Mrs Justice O'Farrell considered that the delay from 12 May 2016 to 05 September 2016 (88 days) was a substantial delay. Where the parties are jointly and severally liable for payment of the Arbitrator's fees, it is no justification to allow the 28 day period to pass simply because you are waiting for your opponent to pay part of the fees, particularly where the fees in question are very modest. Further, choosing a slow method of payment such as cheque will not entitle you to any relief for delay.

This judgment has confirmed, as previously established in S v A&B [2016] EWHC 846, that the onus is on the party wishing to appeal to take the appropriate steps to ensure that he preserves any right to challenge the award. The Court will not rescue you.

A second element to the case concerned the subsequent Costs Award by the Arbitrator following Ballard's successful challenge to his jurisdiction. Rollitt submitted that where an appeal is pending, it was a serious irregularity for the Arbitrator to have continued to make a further award. However, the Court considers the Arbitrator to have a range of decisions open to him which included the decision to make a further award despite the pending appeal. Consequently the further appeal submitted was refused.

Lessons to be learnt?

Following this case it is clear that the Court will not keep appeals alive where the appealing party has failed to take appropriate steps to maintain their appeal rights. Parties must take it into their own hands to ensure their appeal rights are maintained. As regards securing the release or publication of an Arbitrator's Award, the message from the judgment is simple: namely pay up promptly or run the risk of losing your right to appeal.