Gregarious Limited v Westgroup Investment Limited

Under the Commercial Rent (Coronavirus) Act 2022, the statutory periods governing notice and reference to arbitration are strict. A reference made before the period required by section 10(2) has expired is invalid, even where the respondent knew that the claimant intended to refer the matter and acknowledged receipt of a notice. The Act contains no implied power to dispense with those requirements.

An extension of time for an arbitration claim requires particularised evidence addressing the relevant circumstances. Ignorance of the deadline, the claimant’s status as a litigant in person, and a director’s workload are insufficient without more. A materially late and unpleaded alternative case will not ordinarily be permitted where it would require an adjournment and prejudice the fair determination of the proceedings.

The claimant tenant challenged an arbitrator’s award dated 4 September 2023, which concluded that he had no jurisdiction under the Commercial Rent (Coronavirus) Act 2022. The tenant had served a notice of intention to refer on 13 September 2022 and made its reference on 22 September 2022, before the minimum period in section 10(2) had elapsed and after the statutory six-month reference window had expired.

The court had previously struck out the claim. The tenant applied to set that order aside, sought an extension of time for the arbitration claim under the Arbitration Act 1996, and sought permission to advance a new case concerning earlier correspondence and the lease’s service provisions.

1. Claim dismissed. The application to set aside the order of 7 December 2023 and the informal application to amend the claim form were dismissed.
2. Sections 9(2) and 10(2) of the Commercial Rent (Coronavirus) Act 2022 had to be construed in the context of the Act’s tightly structured procedure. The notice period allowed the respondent to consider the tenant’s proposal, negotiate, and prepare evidence. The subsequent timetable under sections 11, 14(4) and 15 reinforced the need for a fair and workable sequence.
3. The imperative wording of section 10(2), the need for certainty when a reference is issued, and the absence of any express power to vary the period showed that non-compliance invalidated the reference. The respondent’s knowledge of the intended reference, or acknowledgement of receipt of the notice, did not create an implied dispensation.
4. The notice of 13 September 2022 was therefore too late to support the reference made on 22 September 2022. The reference was invalid and the pleaded claim was bound to fail. Section 12 of the Arbitration Act 1996 could not provide the requested relief in a statutory arbitration, by reason of section 97, and would in any event not authorise reducing the statutory notice period.
5. Alternatively, applying the considerations identified in Aoot Kalmneft v Glencore International AG [2002] 1 Lloyd’s Rep 128, the 25-day delay was significant, inadequately explained, and unsupported by detailed evidence. The claimant’s ignorance of the deadline, litigant-in-person status, and the director’s competing workload did not justify an extension.
6. The proposed new case was materially late, unpleaded, and unsupported by a proper amendment application. It raised evidential and procedural issues requiring an adjournment and could not fairly be introduced at that stage.