Squibb Group Ltd v Pole 2 Pole Scaffolding Ltd

An extension of time to challenge an arbitration award is exceptional. The court must give substantial weight to the statutory policy of speedy finality and consider principally the length of delay, the applicant’s explanation, and any contribution by the respondent or arbitrator. Delay measured in days may be significant against a 28-day period. An unexplained failure to pay the arbitrator’s fees is not ordinarily a reasonable excuse. The court may consider the apparent strength of the proposed challenge, but should not conduct a substantial merits investigation at the extension stage. Permission to appeal under the Arbitration Act 1996 requires an issue of law that substantially affects the parties’ rights and satisfies the statutory threshold.

Squibb Group Limited sought an extension of time and permission under section 69 of the Arbitration Act 1996 to appeal an arbitration award requiring it to pay Pole 2 Pole Scaffolding Limited £97,620.19 plus VAT and interest.

The award was completed on 27 April 2017 but was released on 26 June 2017 after Squibb paid its share of the arbitrator’s fees. The statutory 28-day period had expired on 25 May 2017. Pole 2 Pole had meanwhile obtained permission to enforce the award. The court therefore considered the extension application, the proposed appeal, and Squibb’s application to set aside the enforcement order and obtain a stay.

1. Extension of time. The 84-day delay was substantial when measured against the statutory 28-day period. Squibb provided no reasonable explanation for failing to pay the arbitrator’s fees before the deadline and no explanation for the further delay after it had decided to appeal. The arbitrator was entitled to retain the award pending payment under section 56 of the Arbitration Act 1996, but Squibb was responsible for preserving any right to challenge it.
2. The court applied the factors identified in Terna Bahrain Holding Co. WWL v Al Shamsi [2012] EWHC 3283, as adopted in Rollitt v Ballard [2017] EWHC 1500. The primary considerations were the length of delay, the explanation for it, and any contribution by the respondent or arbitrator. The policy of autonomy and finality in arbitration meant that delay caused irremediable prejudice to Pole 2 Pole through delayed payment and additional enforcement expense.
3. The proposed appeal was weak. The arbitrator’s conclusion that both parties’ terms were incorporated involved mixed questions of law and fact and was based on findings of fact supported by the evidence. The decision was not obviously wrong. Further, the sums potentially affected were too small for the proposed question substantially to affect the parties’ rights. The requirements of section 69(3) were therefore not met. The court also noted that AOOT Kalmneft v Glencore International AG [2001] EWHC 464 identified the correct statutory route concerning the relevant application.
4. The extension was refused and permission to appeal was refused. The application to set aside the enforcement order and for a stay was dismissed. Squibb was ordered to pay Pole 2 Pole’s costs, summarily assessed on paper if not agreed.

First-instance arbitration application determined on paper under CPR PD62. The judgment itself does not state any subsequent appellate decision.