Colliers International Property Consultants ("Cipc") & Anor v Colliers Jordan Lee Jafaar Sdn Bhd

Procedural defects in an application to enforce an arbitral award do not automatically invalidate the resulting order. Under CPR 3.10, the court may remedy an accidental error where the opposing party suffers no prejudice; setting aside the order would be disproportionate. In a summary application under section 66 of the Arbitration Act 1996, the parties should be identified as they were in the arbitration and the court cannot enter judgment in terms different from the award. A section 68 time extension requires particularised grounds, evidence showing an arguable challenge, and compliance with the statutory requirements concerning knowledge and reasonable diligence. The policy favouring finality in arbitration is important. Bare allegations of conspiracy, fraud or newly discovered material are insufficient.

The claimants obtained, without notice, an order under section 66 of the Arbitration Act 1996 entering an ICC arbitration award as a judgment. The defendant, a former member of the Colliers group, applied to set aside the order, alleging defects in the claim form and supporting evidence, inadequate disclosure, defects in the order, and improper service in Malaysia.

The defendant also sought a stay of enforcement and an extension of time to challenge the award under section 68 of the Arbitration Act 1996. The issues were whether the procedural irregularities justified setting aside the order and whether the evidence justified extending time for a serious-irregularity challenge.

1. The application to set aside was dismissed. The absence of signatures on the claim form and first witness statement was an accidental procedural error. Applying CPR 3.10, and by analogy the approach in Philips v Symes [2008] UKHL 1, the court could allow the documents to be verified retrospectively. There was no prejudice to the defendant, and setting aside the order would be disproportionate. The claimants were therefore given seven days to file and serve verified copies.
2. The claimants were entitled to identify themselves in the enforcement proceedings in the same way as in the arbitration. The summary procedure under sections 66 and 101 of the Arbitration Act 1996 follows the arbitration, and the court cannot enter judgment in terms different from the award: Walker v Rowe [2000] 1 Lloyd's Rep 116. The defendant's objections to the identity of the claimants therefore failed.
3. The application complied sufficiently with CPR 62.18(6). That provision required production of the arbitration agreement, not every document relevant to whether contractual preconditions had been satisfied. Section 7 of the Arbitration Act 1996 treated an arbitration agreement as distinct from the wider agreement containing it.
4. The alleged non-disclosure was immaterial. An applicant using a summary, without-notice process must make full and fair disclosure, particularly when an order will be served abroad: Fitzgerald v Williams [1996] QB 657, Ghafoor v Cliff [2006] 1 WLR 3060 and Memory Corporation v Sidhu [2000] 1 WLR 1443. Here, the claim form and evidence addressed service in Malaysia if summary relief were refused, and no prejudice resulted from the omission of express wording.
5. Service in Malaysia was not shown to be defective. The evidence supported service at the defendant's registered office, and the alleged missing exhibit pages caused no prejudice. Even if service had been defective, the proper course would have been an application concerning service, not setting aside the enforcement order.
6. The request for an extension of time under section 68 was refused. The defendant had not identified a properly arguable case of fraud, public-policy breach or excess of power. The strict threshold described in Lesotho Highlands Development Authority v Impregilo SPA [2005] 2 Lloyd's Rep 310 and Elektrim SA v Vivendi SA [2007] 1 Lloyd's Rep 693 was not met. The court also applied the finality considerations identified in AOOT Kalmneft v Glencore International AG [2001] Lloyd's Rep 128, approved in Nagusinina Naviera v Allied Maritime Inc [2002] EWCA Civ 1147.
7. Section 73 independently defeated the proposed challenges. The matters relied on concerned issues determined in earlier partial awards, in which the defendant continued to participate. It had not shown that it lacked knowledge and could not with reasonable diligence have discovered the grounds of objection. The claimants bore the costs caused by the defective verification; the defendant bore the remainder.