Layngross
T: +44(0) 1932 856463
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Derek is a member of the FIDIC President’s List of Adjudicators and the Irish Government's Panel of Construction Contract Adjudicators, in addition to several UK adjudication, arbitration and mediation panels. He is a Chartered Arbitrator, Accredited Mediator & Conciliator, Registered Adjudicator and Dispute Board Member, who accepts domestic and international appointments as the neutral person in each of these construction dispute resolution disciplines. He is also a Past Master of the Worshipful Company of Arbitrators and a Chartered Civil Engineer, well versed in resolving technical, contractual and quantum disputes in the construction industry.

If you feel Dr Ross can assist you, please call him for a no obligation discussion on +44 1932 856463, or simply reply to this email with your details.

Below is an article he has written, which he hopes you will find of interest.

 

THE APPEAL OF ARBITRATION

 

Much of the appeal of arbitration lies in the very limited grounds for appealing an arbitrator's award to the courts. Under the English Arbitration Act 1996 (AA'96) there are three such grounds; namely (1) lack of jurisdiction of the tribunal, which objection needs to have been raised during the proceedings, (2) serious irregularity on the part of the tribunal which results in substantial injustice and (3) error on a point of law that the tribunal has been asked to determine. Notably, alleged error of fact is not a ground for appealing an arbitrator's award as that would undermine the whole process. Notably also, the appellant needs the permission of the court to bring an appeal, and must bring it within 28 days of the date of the award.

 

Two recent cases in the Technology and Construction Court; namely Rollit v. Ballard [2017] EWHC 1500 and Squibb Group v. Pole2Pole Scaffolding [2017] EWHC 2394, highlight the difficulties would be appellants can get themselves into if they do not pay the arbitrator promptly. The 28 day time limit for appeals runs from the date the arbitrator signs the award and makes it available, not from when the parties receive it. Bearing in mind that arbitrators are entitled to withhold their awards until they have been paid in cleared funds, any delay in paying the arbitrator tends to eat into the period available for bringing an appeal. So it was in the cases just mentioned. The arbitrators were not paid and their awards were not released until long after the period for appeals had expired. Undaunted, the dissatisfied party in each case sought leave to appeal on points of law in excess of eighty days out of time.

 

Whilst the court has a discretion to extend the time for bringing an appeal if a non-culpable reason for the delay can be given, anything less will get little sympathy from the court. In the cases just mentioned, the court did not consider delayed receipt of the award due to a delay in paying the arbitrator was a sufficient reason to extend the deadline for bringing an appeal. The court also took into account the strength of the appeals and considered whether leave to appeal would have been granted if the applications had been made within time. Both appeals purported in the main to be on pure points of law. Contrary to that however, the court found the grounds for appeal concerned determinations of mixed fact and law, which are outside the narrow point of law scope of AA'96. Thus leave to appeal was refused in both cases, and whilst AA'96 contains safeguards against blatant injustice, its grounds for appealing an award are extremely narrow, and are nonexistent if the arbitrator is legitimately able to withhold the award until after the time limit for appealing against it has expired.

Dr Derek Ross

19 October 2017

 

Please Note: The foregoing article has been prepared by Dr Derek Ross for the general interest and benefit of readers. It is not intended to be a definitive analysis of the law or of other matters discussed. Neither does it create a client relationship between the recipient and Dr Ross. Thus no liability is accepted in respect of any reliance placed on any statements made in the foregoing article. Proper advice ought always to be taken before deciding to take, or not to take, action in respect of a specific issue.

 

© 2017 Dr Derek Ross & Layng Ross Construction Disputes Resolution.

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