Ravfox Limited v Bexmoor Limited [2025] EWHC 1313 (Ch)

[2025] EWHC 1313 (Ch)Case No PT-2025-CDF-000006IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS IN WALESPROPERTY, TRUSTS AND PROBATE LIST (ChD)Venue Cardiff Civil Justice Centre, 2 Park Street, Cardiff, CF10 1ETDate 27 June 2025
Before
HIS HONOUR JUDGE KEYSER KCsitting as a Judge of the High Court
Between
RAVFOX LIMITEDClaimantBEXMOOR LIMITEDDefendant
Stephen Davies KC (instructed by Peter Lynn & Partners) for ClaimantNiraj Modha (instructed by Redkite Solicitors) for DefendantHearing Hearing date: 22 May 2025Draft judgment sent to parties: 27 May 2025Further written submissions: 29 May, 30 May, 5 June 2025
Approved JudgmentThis judgment was handed down remotely at 10.30 a.m. on 27 June 2025 by circulation to the parties or their representatives by email and by release to the National Archives..............................HIS HONOUR JUDGE KEYSER KC
[1]If one party to a dispute makes a reference to arbitration under the Arbitration Act 1996 (“the 1996 Act”) and the arbitrator accedes to the respondent’s challenge to his jurisdiction, does the arbitrator have the power to award the respondent its costs of the jurisdictional challenge? That is the primary legal question in these proceedings; I shall call it “the Arbitrator’s Jurisdiction Question”. The secondary legal question (which I shall call “the Court’s Jurisdiction Question”) is whether, if the arbitrator does not have the power to make such an order, or if he does not exercise the power that he does have to make such an order, the court has the power to make such an order.[2]The questions arise in the present case because, after the defendant had referred a dispute with the claimant to arbitration and the claimant had successfully challenged the arbitrator’s jurisdiction, the arbitrator declined to award the claimant its costs on the grounds that he lacked any jurisdiction. By an arbitration claim form issued on 13 January 2025, the claimant seeks to obtain relief from the court via three alternative routes: an appeal under section 69 of the 1996 Act (“the Appeal”); a challenge under section 68 (“the Challenge”); and an application for a costs award under section 63 (“the Claim”). By an order dated 10 April 2025 I directed that the claimant’s application for permission to appeal pursuant to section 69 of the 1996 Act be considered at the hearing of the Claim, with the appeal to follow at the same hearing if permission were granted. As will become apparent from what follows, procedural issues are just as important in this case as the two legal questions identified above.[3]I originally sent a draft judgment to the parties on 27 May 2025, with a view to handing it down on 30 May 2025. I then received a request from the claimant to reconsider the judgment on the basis that, “through no possible fault of the court”, part of the reasoning in the judgment rested on “a fundamentally wrong factual basis”. In short, as will be explained below, I had been misinformed as to a potentially significant date in the chronology. As a result, I have received and considered a total of 27 pages of further submissions from counsel (Mr Stephen Davies KC for the claimant and Mr Niraj Modha for the defendant), as well as further evidence on the factual point. I regard this as highly regrettable and wasteful of court time, though the scope of the arguments now advanced have enabled me to think more closely about some of the issues and to revise some of my earlier, provisional reasoning.[4]The remainder of this judgment will be structured as follows: 1) A short summary of the facts (paragraphs 5-9). 2) The most relevant provisions of the 1996 Act (paragraph 10). 3) The Court’s Jurisdiction Question (paragraphs 11-15). 4) The Claim under section 63(4) (paragraph 16). 5) The Arbitrator’s Jurisdiction Question (paragraphs 17-25). 6) The Appeal under section 69 (paragraphs 26-41). 7) The Challenge under section 68 (paragraphs 42-44). 8) Conclusion (paragraphs 45-48).

Summary of the Facts

[5]The claimant is the head lessee of land and premises comprising an industrial estate. It is a management company with no assets and exists solely to manage the industrial estate and to collect the ground rent and a service charge from the sublessees to whom the individual units on the industrial estate are sublet. In 2023 the defendant disputed the amount of the service charge it was paying as a sublessee. On 9 November 2023 the defendant referred the dispute to arbitration. The referral stated that the defendant was a sublessee of certain units at the industrial estate and that the claimant was the head lessee, and it alleged non-compliance by the claimant with its obligations under the sublease. The respondents to the arbitration, as originally named, were the claimant and its directors (“the Dineens”).[6]Mr Kevin Woudman (“the Arbitrator”) accepted the appointment and gave directions for the future proceeding of the arbitration, which was governed by the 1996 Act. Directions Order No. 1, dated 12 February 2024, recorded that no challenge had been made to the Arbitrator’s jurisdiction, and it gave directions for statements of case. The defendant filed a Statement of Claim, in which it said that it was not a party to and was not bound by the sublease mentioned in the referral but by a different sublease; it also claimed a repayment of ground rent that it had paid. The claimant filed a Statement in Reply, which challenged the Arbitrator’s jurisdiction on the grounds(i) that the defendant’s own case was that it was not privy to or bound by the sublease and(ii) that the claim for repayment of ground rent had not been part of the referral. The claimant also sought the removal of the Dineens as respondents. Paragraph 50 of the claimant’s statement of case stated:
“The Respondents seek their full costs and expenses of the arbitration from the Claimant.”
The defendant contested the challenge to jurisdiction, though it acceded to the removal of the Dineens as respondents. By Directions Order No. 3, dated 15 July 2024, the Arbitrator directed the removal of the Dineens as respondents and required the parties to make submissions as to (i) whether the defendant was liable to pay the Dineens’ costs and (ii) the jurisdictional challenge. Paragraph 13 of the order said:
“I will deal with the above matters and any liability for costs that arises out of the raising of those matters by way of my first award.”
[7]The Arbitrator’s decision on the two issues he had identified was given in an award bearing the date 21 October 2024, which was released on 30 November 2024 after payment of his fees by both parties: I shall call this “the Main Award”. (In fact, the evidence produced since the release of my provisional draft judgment shows that the Main Award was provided to the claimant’s solicitors on 27 November 2024, after they had paid 50% of the Arbitrator’s fees, although it was provided on terms that they did not share it with the defendant until the defendant had paid its share of the Arbitrator’s fees.) It was not suggested at the hearing that the date shown on the Main Award was incorrect, and it appeared that release of the Main Award had been substantially delayed by a delay in paying the Arbitrator’s fees. However, the evidence now produced shows that the date on the Main Award was wrong and that the Arbitrator probably finished writing the Main Award on 21 November 2024, when he informed the parties that he was ready to release it upon payment of his fees.[8]By the Main Award, the Arbitrator upheld the claimant’s jurisdictional challenge on both grounds. For present purposes I shall only refer to a few passages in the Main Award. “22. … I subsequently [that is, after Directions Order No. 3] confirmed that I would deal with the jurisdictional challenge, and the costs associated with the removal of the Dineens, by way of an Award.” “25. This is my first Award in this arbitration and solely deals with the challenge to my jurisdiction and the costs of the Dineens.” “50. It was close but, on the evidence before me, Bexmoor have not been able to satisfy the standard of proof necessary for me to find that all of the terms in the Bexmoor sub-leases, including the arbitration clauses, bind Ravfox. Where a contract containing an arbitration clause is not binding on both parties, I do not have jurisdiction.” “51. The Costs of the Dineens Given that I do not consider that I have jurisdiction in the dispute referred to the RICS by Bexmoor, I am unable to make any determination on the costs of the Dineens who [sic] Bexmoor had asked to be removed as parties to the arbitration, having previously requested that they be included. However, I have read through the submissions made by the parties on this issue and, for completeness, if I did rule that I had jurisdiction in this matter I would have found in favour of the Claimant [i.e. the present defendant] and ordered that no costs were payable.” “For the reasons given above I RULE as follows: A. I do not have jurisdiction to deal with the dispute referred to the RICS by Bexmoor on 9 November 2023.” The Main Award said nothing expressly about costs as between the claimant and the defendant. The defendant has not challenged the Main Award. Given that I do not consider that I have jurisdiction in the dispute referred to the RICS by Bexmoor, I am unable to make any determination on the costs of the Dineens who [sic] Bexmoor had asked to be removed as parties to the arbitration, having previously requested that they be included. However, I have read through the submissions made by the parties on this issue and, for completeness, if I did rule that I had jurisdiction in this matter I would have found in favour of the Claimant [i.e. the present defendant] and ordered that no costs were payable.”[9]On 20 December 2024, after unproductive discussions between the parties, the claimant applied by email to the Arbitrator for an award of costs consequential upon the Main Award in respect of jurisdiction. The email read in part:
“Thank you for your e-mail enclosing the Award. We have sought to agree costs with the Applicant directly. There has been no agreement. Accordingly, the Respondent is seeking an Award for the costs of the Arbitration. A determination is sought, it is our position that you can provide this determination, but if not, the Respondent will need to seek it from the Court. We would be grateful if you could provide a determination on whether you have jurisdiction to determine costs. It is the Respondent’s position that you do have this jurisdiction. Please see this authority: Rollitt (t/a CD Consult) v Ballard [2017] EWHC 1500 (TCC) (23 June 2017). We consider that you do have jurisdiction to deal, as both parties had agreed you had jurisdiction to deal with jurisdiction and this is consequential upon that decision.”
The Arbitrator responded on the same day:
“Whilst I accept that the arbitration agreement in a contract is separable, in the instant case I do not consider that I have jurisdiction to determine the costs of the jurisdictional challenge and am happy for this matter to be put before the court.”
For convenience, I shall call the Arbitrator’s response “the Costs Award”, although whether it constitutes an “award” at all is in issue.

Arbitration Act 1996

[10]The following provisions in Part I of the 1996 Act are of most relevance to this case. “30. Competence of tribunal to rule on its own jurisdiction.(1) Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to— (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, and (c) what matters have been submitted to arbitration in accordance with the arbitration agreement.(2) Any such ruling may be challenged by any available arbitral process of appeal or review or in accordance with the provisions of this Part.” “31. Objections to substantive jurisdiction of tribunal. (1) An objection that the arbitral tribunal lacks substantive jurisdiction at the outset of the proceedings must be raised by a party not later than the time he takes the first step in the proceedings to contest the merits of any matter in relation to which he challenges the tribunal’s jurisdiction. A party is not precluded from raising such an objection by the fact that he has appointed or participated in the appointment of an arbitrator. (2) Any objection during the course of the arbitral proceedings that the arbitral tribunal is exceeding its substantive jurisdiction must be made as soon as possible after the matter alleged to be beyond its jurisdiction is raised.(3) The arbitral tribunal may admit an objection later than the time specified in subsection (1) or (2) if it considers the delay justified.(4) Where an objection is duly taken to the tribunal’s substantive jurisdiction and the tribunal has power to rule on its own jurisdiction, it may— (a) rule on the matter in an award as to jurisdiction, or (b) deal with the objection in its award on the merits. If the parties agree which of these courses the tribunal should take, the tribunal shall proceed accordingly.(5) The tribunal may in any case, and shall if the parties so agree, stay proceedings whilst an application is made to the court under section 32 (determination of preliminary point of jurisdiction).” “32. Determination of preliminary point of jurisdiction. (1) The court may, on the application of a party to arbitral proceedings (upon notice to the other parties), determine any question as to the substantive jurisdiction of the tribunal. …” “33. General duty of the tribunal. (1) The tribunal shall— (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. (2) The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it.” “47. Awards on different issues, &c. (1) Unless otherwise agreed by the parties, the tribunal may make more than one award at different times on different aspects of the matters to be determined. (2) The tribunal may, in particular, make an award relating— (a) to an issue affecting the whole claim, or (b) to a part only of the claims or cross-claims submitted to it for decision. (3) If the tribunal does so, it shall specify in its award the issue, or the claim or part of a claim, which is the subject matter of the award.” “57. Correction of award or additional award. (1) The parties are free to agree on the powers of the tribunal to correct an award or make an additional award. (2) If or to the extent there is no such agreement, the following provisions apply. (3) The tribunal may on its own initiative or on the application of a party— (a) correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award, or (b) make an additional award in respect of any claim (including a claim for interest or costs) which was presented to the tribunal but was not dealt with in the award. These powers shall not be exercised without first affording the other parties a reasonable opportunity to make representations to the tribunal. (4) Any application for the exercise of those powers must be made within 28 days of the date of the award or such longer period as the parties may agree. (5) Any correction of an award shall be made within 28 days of the date the application was received by the tribunal or, where the correction is made by the tribunal on its own initiative, within 28 days of the date of the award or, in either case, such longer period as the parties may agree.(6) Any additional award shall be made within 56 days of the date of the original award or such longer period as the parties may agree.(7) Any correction of an award shall form part of the award.” “59. Costs of the arbitration. (1) References in this Part to the costs of the arbitration are to— (a) the arbitrators’ fees and expenses, (b) the fees and expenses of any arbitral institution concerned, and (c) the legal or other costs of the parties. (2) Any such reference includes the costs of or incidental to any proceedings to determine the amount of the recoverable costs of the arbitration (see section 63).” “61. Award of costs. (1) The tribunal may make an award allocating the costs of the arbitration as between the parties, subject to any agreement of the parties. (2) Unless the parties otherwise agree, the tribunal shall award costs on the general principle that costs should follow the event except where it appears to the tribunal that in the circumstances this is not appropriate in relation to the whole or part of the costs.” “62. Effect of agreement or award about costs. Unless the parties otherwise agree, any obligation under an agreement between them as to how the costs of the arbitration are to be borne, or under an award allocating the costs of the arbitration, extends only to such costs as are recoverable.” “63. The recoverable costs of the arbitration. (1) The parties are free to agree what costs of the arbitration are recoverable. (2) If or to the extent there is no such agreement, the following provisions apply. (3) The tribunal may determine by award the recoverable costs of the arbitration on such basis as it thinks fit. If it does so, it shall specify— (a) the basis on which it has acted, and (b) the items of recoverable costs and the amount referable to each. (4) If the tribunal does not determine the recoverable costs of the arbitration, any party to the arbitral proceedings may apply to the court (upon notice to the other parties) which may— (a) determine the recoverable costs of the arbitration on such basis as it thinks fit, or (b) order that they shall be determined by such means and upon such terms as it may specify. (5) Unless the tribunal or the court determines otherwise— (a) the recoverable costs of the arbitration shall be determined on the basis that there shall be allowed a reasonable amount in respect of all costs reasonably incurred, and (b) any doubt as to whether costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the paying party. (6) The above provisions have effect subject to section 64 (recoverable fees and expenses of arbitrators). (7) Nothing in this section affects any right of the arbitrators, any expert, legal adviser or assessor appointed by the tribunal, or any arbitral institution, to payment of their fees and expenses.” “65. Power to limit recoverable costs. (1) Unless otherwise agreed by the parties, the tribunal may direct that the recoverable costs of the arbitration, or of any part of the arbitral proceedings, shall be limited to a specified amount. (2) Any direction may be made or varied at any stage, but this must be done sufficiently in advance of the incurring of costs to which it relates, or the taking of any steps in the proceedings which may be affected by it, for the limit to be taken into account.” “68. Challenging the award: serious irregularity. (1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3). (2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant— (a) failure by the tribunal to comply with section 33 (general duty of tribunal); … (d) failure by the tribunal to deal with all the issues that were put to it; … (3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may— (a) remit the award to the tribunal, in whole or in part, for reconsideration, (b) set the award aside in whole or in part, or (c) declare the award to be of no effect, in whole or in part. The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.” “69. Appeal on point of law. (1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings. An agreement to dispense with reasons for the tribunal’s award shall be considered an agreement to exclude the court’s jurisdiction under this section. (2) An appeal shall not be brought under this section except— (a) with the agreement of all the other parties to the proceedings, or (b) with the leave of the court. The right to appeal is also subject to the restrictions in section 70(2) and (3). (3) Leave to appeal shall be given only if the court is satisfied— (a) that the determination of the question will substantially affect the rights of one or more of the parties, (b) that the question is one which the tribunal was asked to determine, (c) that, on the basis of the findings of fact in the award— (i) the decision of the tribunal on the question is obviously wrong, or (ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and (d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question. (4) An application for leave to appeal under this section shall identify the question of law to be determined and state the grounds on which it is alleged that leave to appeal should be granted. (5) The court shall determine an application for leave to appeal under this section without a hearing unless it appears to the court that a hearing is required. … (7) On an appeal under this section the court may by order— (a) confirm the award, (b) vary the award, (c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court’s determination, or (d) set aside the award in whole or in part. The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration. …” “70. Challenge or appeal: supplementary provisions. (1) The following provisions apply to an application or appeal under section 67, 68 or 69. (2) An application or appeal may not be brought if the applicant or appellant has not first exhausted— (a) any available arbitral process of appeal or review, and (b) any available recourse under section 57 (correction of award or additional award). (3) Any application or appeal must be brought within 28 days of the date of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process. …” “79. Power of court to extend time limits relating to arbitral proceedings. (1) Unless the parties otherwise agree, the court may by order extend any time limit agreed by them in relation to any matter relating to the arbitral proceedings or specified in any provision of this Part having effect in default of such agreement. … (2) An application for an order may be made— (a) by any party to the arbitral proceedings (upon notice to the other parties and to the tribunal), or (b) by the arbitral tribunal (upon notice to the parties). (3) The court shall not exercise its power to extend a time limit unless it is satisfied— (a) that any available recourse to the tribunal, or to any arbitral or other institution or person vested by the parties with power in that regard, has first been exhausted, and (b) that a substantial injustice would otherwise be done. (4) The court’s power under this section may be exercised whether or not the time has already expired. (5) An order under this section may be made on such terms as the court thinks fit.” “80. Notice and other requirements in connection with legal proceedings. (1) References in this Part to an application, appeal or other step in relation to legal proceedings being taken “upon notice” to the other parties to the arbitral proceedings, or to the tribunal, are to such notice of the originating process as is required by rules of court and do not impose any separate requirement. (2) Rules of court shall be made— (a) requiring such notice to be given as indicated by any provision of this Part, and (b) as to the manner, form and content of any such notice. (3) Subject to any provision made by rules of court, a requirement to give notice to the tribunal of legal proceedings shall be construed— (a) if there is more than one arbitrator, as a requirement to give notice to each of them; and (b) if the tribunal is not fully constituted, as a requirement to give notice to any arbitrator who has been appointed. (4) References in this Part to making an application or appeal to the court within a specified period are to the issue within that period of the appropriate originating process in accordance with rules of court. (5) Where any provision of this Part requires an application or appeal to be made to the court within a specified time, the rules of court relating to the reckoning of periods, the extending or abridging of periods, and the consequences of not taking a step within the period prescribed by the rules, apply in relation to that requirement. (6) Provision may be made by rules of court amending the provisions of this Part— (a) with respect to the time within which any application or appeal to the court must be made, (b) so as to keep any provision made by this Part in relation to arbitral proceedings in step with the corresponding provision of rules of court applying in relation to proceedings in the court, or (c) so as to keep any provision made by this Part in relation to legal proceedings in step with the corresponding provision of rules of court applying generally in relation to proceedings in the court. (7) Nothing in this section affects the generality of the power to make rules of court.” (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, and (c) what matters have been submitted to arbitration in accordance with the arbitration agreement. A party is not precluded from raising such an objection by the fact that he has appointed or participated in the appointment of an arbitrator. (a) rule on the matter in an award as to jurisdiction, or (b) deal with the objection in its award on the merits. If the parties agree which of these courses the tribunal should take, the tribunal shall proceed accordingly. (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. (a) to an issue affecting the whole claim, or (b) to a part only of the claims or cross-claims submitted to it for decision. (a) correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award, or (b) make an additional award in respect of any claim (including a claim for interest or costs) which was presented to the tribunal but was not dealt with in the award. These powers shall not be exercised without first affording the other parties a reasonable opportunity to make representations to the tribunal. (a) the arbitrators’ fees and expenses, (b) the fees and expenses of any arbitral institution concerned, and (c) the legal or other costs of the parties. (a) the basis on which it has acted, and (b) the items of recoverable costs and the amount referable to each. (a) determine the recoverable costs of the arbitration on such basis as it thinks fit, or (b) order that they shall be determined by such means and upon such terms as it may specify. (a) the recoverable costs of the arbitration shall be determined on the basis that there shall be allowed a reasonable amount in respect of all costs reasonably incurred, and (b) any doubt as to whether costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the paying party. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3). (a) failure by the tribunal to comply with section 33 (general duty of tribunal); … (d) failure by the tribunal to deal with all the issues that were put to it; … (a) remit the award to the tribunal, in whole or in part, for reconsideration, (b) set the award aside in whole or in part, or (c) declare the award to be of no effect, in whole or in part. (a) with the agreement of all the other parties to the proceedings, or (b) with the leave of the court. (a) that the determination of the question will substantially affect the rights of one or more of the parties, (b) that the question is one which the tribunal was asked to determine, (c) that, on the basis of the findings of fact in the award— (i) the decision of the tribunal on the question is obviously wrong, or (ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and (d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question. (a) confirm the award, (b) vary the award, (c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court’s determination, or (d) set aside the award in whole or in part. The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration. …” (a) any available arbitral process of appeal or review, and (b) any available recourse under section 57 (correction of award or additional award). … (a) by any party to the arbitral proceedings (upon notice to the other parties and to the tribunal), or (b) by the arbitral tribunal (upon notice to the parties). (a) that any available recourse to the tribunal, or to any arbitral or other institution or person vested by the parties with power in that regard, has first been exhausted, and (b) that a substantial injustice would otherwise be done. (a) requiring such notice to be given as indicated by any provision of this Part, and (b) as to the manner, form and content of any such notice. (a) if there is more than one arbitrator, as a requirement to give notice to each of them; and (b) if the tribunal is not fully constituted, as a requirement to give notice to any arbitrator who has been appointed. (a) with respect to the time within which any application or appeal to the court must be made, (b) so as to keep any provision made by this Part in relation to arbitral proceedings in step with the corresponding provision of rules of court applying in relation to proceedings in the court, or (c) so as to keep any provision made by this Part in relation to legal proceedings in step with the corresponding provision of rules of court applying generally in relation to proceedings in the court.

The Court’s Jurisdiction Question

[11]The issue here is whether, as the Arbitrator did not make an order in respect of the costs of the jurisdictional challenge, the court has the power to make such an order pursuant to section 63(4) of the 1996 Act. I have previously described this as the secondary legal issue in the case, and both it and the Claim under section 63(4) of the 1996 Act to which it relates were very much a subsidiary part of Mr Davies’s argument for the claimant. I deal with the issue and the Claim first, however, because they are (in my view) easy to determine, and because they throw the Arbitrator’s Jurisdiction Question into sharper relief.[12]The possibility that the court might have such the power to make a costs order under section 63(4) was mentioned in para 8.68 of the Law Commission Consultation Paper 257, Review of the Arbitration Act 1996, quoted below.[13]However, in my judgment section 63(4) confers no such power.[14]Section 61 gives the arbitral tribunal the power to make a costs order as between the parties, subject to any agreement of the parties. Section 62 provides that any obligation under an agreement or order for the allocation of costs “extends only to such costs as are recoverable.” Section 63 addresses a quite different question, namely that of which allocated costs are recoverable. Section 63(1) confirms the parties’ freedom to agree what costs are recoverable; this is clearly different from agreements as to allocation of costs, to which section 61 refers. The remaining provisions of section 63 are all concerned with what might broadly be called issues of assessment: identifying what items of costs shall be recoverable and specifying the amounts referable to those items. They have nothing to do with the allocation of costs as between the parties. The express power in section 63(4) is a valuable one, because the court will often be in a much better position than the arbitral tribunal to deal with matters of assessment.[15]I have not been referred to any authority that supports a contrary interpretation of section 63. Mr Davies did refer, in this connection (skeleton argument, paragraphs 30 and 32; also in oral submissions), to the decision of O’Farrell J in Rollitt v Ballard [2017] EWHC 1500 (TCC), to which the Arbitrator had been referred in connection with his own jurisdiction. The defendant in that case had successfully challenged the arbitrator’s jurisdiction: see [5]. The defendant then applied for its costs in respect of the jurisdictional challenge: see [11]. The arbitrator notified the parties that they had conferred jurisdiction on him to determine the jurisdictional challenge and that he had power to award costs in respect of the jurisdictional challenge, and he made a costs award: see [13]-[14]. Pursuant to section 68(2)(a) of the 1996 Act, the claimant challenged the costs award, saying that the arbitrator had acted irrationally in dealing with costs when there was a pending challenge to the substantive award on jurisdiction: see [41]. O’Farrell J said:
“44. In this case, the claimant’s complaint falls far below the high threshold imposed by section 68. It is not disputed that the arbitrator had power to make the Costs Award under section 63 of the Act. The claimant had referred the dispute to the arbitrator and signed his terms and conditions. Although the defendant had refused to sign the arbitrator’s terms and conditions, he had made the jurisdictional challenge and therefore submitted to the tribunal for that purpose. 45. The arbitrator had a wide discretion as to whether to proceed to make the Costs Award or to await the outcome of the arbitration claim in court. The arbitrator gave both parties an opportunity to make submissions on costs. The claimant contends that the arbitrator’s decision to proceed was irrational but it was within the range of decisions open to him and there was no procedural unfairness. 46. In any event, given that the arbitration challenge to the Award has failed, the arbitrator’s determination of costs has not resulted in any injustice.”
In agreement with Mr Modha, I cannot see that this passage—or, indeed, the case of Rollitt v Ballard generally—has anything to do with the question of the court’s powers under section 63(4). The simple position in that case was that the arbitrator had made a costs award, both parties agreed he had power to make a costs award (I wonder, in passing, whether the reference at [44] to section 63 ought to have been to section 61), and one party was seeking to challenge the costs award under section 68 or appeal against it under section 69.

The Claim: section 63(4)

[16]It follows from my consideration of the Court’s Jurisdiction Question that the Claim under section 63 fails. It also follows that, if the Arbitrator was wrong to think that he had no jurisdiction to award the claimant the costs of the jurisdictional challenge, the claimant’s only recourse could be by means of a challenge under section 68 or an appeal under section 69. I therefore turn to the Arbitrator’s Jurisdiction Question.

The Arbitrator’s Jurisdiction Question

[17]The Arbitrator took the view that, because he had no jurisdiction pursuant to the referral made to him, he had no jurisdiction to award costs to the party (the claimant) that had made the successful jurisdictional challenge. In my view, the Arbitrator was wrong on this point.[18]The conclusion reached by the Arbitrator was, as Mr Davies observed, unattractive and counterintuitive. It would mean that a respondent making a jurisdictional challenge would be at risk of an adverse costs order if the jurisdictional challenge failed and would necessarily bear its own costs if the jurisdictional challenge succeeded, whereas the referring party would be able to recover the costs of successfully defending a jurisdictional challenge but would be at no risk of an adverse costs order if the jurisdictional challenge succeeded. I should reach such a conclusion only with reluctance.[19]Of the authorities to which I was referred, Rollitt v Ballard was most on point. Both parties agreed that the arbitrator had jurisdiction to deal with the costs of the jurisdictional challenge, so O’Farrell J did not receive argument on the point. However, the arbitrator’s jurisdiction to deal with costs was a premise of her decision and, in my view, forms part of the ratio. The first sentence of [45] expressly affirms the arbitrator’s jurisdiction to deal with costs. Further, the claimant was seeking, among other things, to challenge the costs award under section 68: see [1] and [15]. Such a challenge could be brought only if the costs award was an award for the purposes of section 68(1). The reasons given at [45] and [46] for refusing the challenge indicate the judge’s acceptance that the costs award was such an award.[20]Mr Modha referred to the decision of Akenhead J in Crest Nicholson (Eastern) Ltd v Western [2008] EWHC 1325 (TCC). In that case, the claimant had challenged the arbitrator’s jurisdiction, but the arbitrator had decided that he did have jurisdiction. The claimant successfully challenged that decision by application to the court. Having held that the arbitrator had no jurisdiction, Akenhead J said:
“54. Two issues as to costs arose. The first concerned whether or not the Court had jurisdiction to make any order in relation to costs incurred by CNEL in the abortive or invalid arbitration proceedings. Doubtless, CNEL incurred costs in solicitors' fees and other expenses in relation to making representations to Mr Malone that he had no jurisdiction. I am of the view that the Court has no jurisdiction to make any order in relation to costs incurred by the parties in those proceedings. There is nothing in the Arbitration Act which suggests that the Court has jurisdiction in relation to such costs albeit obviously the Court has jurisdiction over the costs of any proceedings under Section 67 of the Arbitration Act 1996. If the purported arbitration proceedings were invalid, the Court could only have power to make an order in relation to those costs if there was some clear statutory power to do so. There is no such power.”
As Mr Modha accepted, this passage deals with the court’s powers, rather than those of the arbitrator. It is right, as he pointed out, that Akenhead J referred to the arbitration proceedings as “invalid”. However, there is nothing “invalid” about proceedings before the arbitrator under sections 30 and 31 of the 1996 Act, because the arbitrator has express statutory power to rule on his own jurisdiction.[21]Mr Modha did find support for his submission that the Arbitrator was right to refuse to deal with costs in Chitty on Contracts (35th edition), para 35-152, which reads (I incorporate selected footnotes):
“If the tribunal rules that it lacks substantive jurisdiction with respect to the matter referred to it, or if the court determines, on an application under s.32 or s.67 of the Act, that the tribunal does not have substantive jurisdiction, it would appear to follow that any award made by the tribunal as to costs is a nullity, unless there can be inferred an ad hoc agreement empowering the tribunal to make such an award [n. 698: Commonwealth Development Corp (UK) v Montague [2000] QCA 252 (Queensland Court of Appeal); Greenberg and Secomb (2002) 18 Arbitration International 125.], or unless it can be said that the party who initiates arbitration impliedly consents to an order for costs being made against him if the tribunal rules that it has no jurisdiction [n.699: This might also arguably be said to follow from s. 30 of the Act …] The costs incurred by a party in relation to the abortive or invalid arbitration proceedings are irrecoverable. [n.700: Crest Nicholson (Eastern) Ltd v Western [2008] EWHC 1325 (TCC), [2008] Build. L.R. 426.]”
[22]I was not referred to the Queensland case or the journal article. As I have indicated, I do not consider that the Crest Nicholson case is authority for such a general proposition as is stated by Chitty. However, section 30 is highly material, in my view, because it confers jurisdiction on the tribunal to rule on its own jurisdiction. Section 31 confirms that it may do so by an award on jurisdiction. The proceedings on the jurisdictional challenge are therefore valid proceedings. There is thus no logical reason why a costs award in respect of those proceedings should be incapable of being made. The argument mentioned in footnote 699 in para 35-152 of Chitty, based on section 30, seems to me to have merit. Further, section 61 confers on the tribunal an express power to “make an award allocating the costs of the arbitration as between the parties”. It might be said that, where there is no jurisdiction, there is no “arbitration”, so that section 61 does not apply. I do not consider it necessary to reach that conclusion. “Arbitration” is not itself a defined word in the 1996 Act, but section 59 defines “the costs of the arbitration” and does so in terms that are, in my view, wide enough to cover the costs of the parties in respect of a jurisdictional challenge.[23]The Law Commission Consultation Paper 257, Review of the Arbitration Act 1996, considered this issue in the following paragraphs, reaching (albeit tentatively) the same conclusion as I have reached:
“8.65 Where an arbitral tribunal has ruled that it does not have jurisdiction, can it nevertheless issue a binding award on costs incurred in the arbitration proceedings up to that point? We have heard some expressions of uncertainty from stakeholders. 8.66 In our provisional view, the answer is probably yes, and we consider that this would be the preferable position as a matter of policy. 8.67 Section 61 of the Arbitration Act 1996 empowers the arbitral tribunal to make an award allocating the costs of the arbitration, subject to any agreement of the parties. In this context, the arbitration might have been shorter than expected, because the arbitral tribunal has ruled that it has no jurisdiction to decide the merits of the dispute. Nevertheless, there has been an arbitration up until that dispositive award. We think that is something which section 61 can fasten upon. 8.68 The alternatives are either that the court might have to decide on costs [n.55: Perhaps under s. 63(4)], which would involve the parties in yet more time and expense. Or costs could be irrecoverable if incurred up to a ruling by an arbitral tribunal that has no jurisdiction. 8.69 We think the latter proposition is unattractive. If the arbitral tribunal rules that it does have jurisdiction, the successful party would ordinarily recover its costs of meeting the challenge. If the arbitral tribunal rules that it does not have jurisdiction, the successful party would get nothing. Instead, the party who wrongly initiated arbitral proceedings would otherwise walk away free of consequences, in circumstances where it has triggered the costs of bringing arbitration proceedings in the first place and progressing them to the point of an award. That imbalance seems unfair. 8.70 In our view, the fairest and tidiest solution is for the arbitral tribunal to be able to award costs, even when it has ruled that it has no jurisdiction to decide the merits of the dispute. To put the matter beyond doubt, we have propose [sic] that this should be provided for expressly in the Arbitration Act 1996.”
[24]The Law Commission’s recommendation is now reflected in section 6(3) of the Arbitration Act 2025, which, when it comes into force, will insert a new subsection (1A) in section 61 of the 1996 Act, as follows:
“(1A) It is irrelevant for the purposes of subsection (1) whether the tribunal has ruled, or a court has held, that the tribunal has no substantive jurisdiction or has exceeded its substantive jurisdiction.”
[25]The Law Commission considered that the new provision was simply “put[ting] the matter beyond doubt”, rather than changing the law. I agree.

The Appeal: section 69

[26]The primary way in which Mr Davies sought to address the Arbitrator’s error was via an appeal under section 69 of the 1996 Act. As the defendant has not agreed to the bringing of an appeal, the claimant requires the leave of the court: section 69(2)(b). An application for leave is usually determined on the papers: section 69(5). In the present case, however, I adjourned the application for leave for consideration at the hearing, partly because of the Claim under section 63 and the Challenge under section 68 but mainly because of the shambolic way in which the matter had been presented by the claimant’s solicitors.[27]At the outset of the hearing I heard an application by the defendant to strike out the proceedings for failure to comply with the requirements of CPR Practice Direction 62—Arbitration. Although I refused the application, the points made in support of it were largely well taken. In breach of the requirement in para 12.1(1) of PD62, the claim form seeking permission to appeal did not actually identify the question of law for the purposes of section 69(1); though I accept that the question—which I have called the Arbitrator’s Jurisdiction Question—was fairly easily inferred. In breach of the requirement in para 12.1(2), the claim form did not state the grounds on which the claimant challenged the award and contended that permission should be given. In breach of the requirement in para 12.1(3), the claim form was not accompanied by a skeleton argument. (Remarkably, despite having been told of its failure by the defendant on 4 March 2025, not until my directions order was issued by the court on 11 April 2025 did the claimant file a skeleton argument on 14 April 2025. That skeleton argument was itself dated 14 April 2025. However, it was only on 6 May 2025 that the claimant served a skeleton argument. And the skeleton argument then served was dated 11 April 2025 and was, apparently, an earlier version of the skeleton argument that was filed on 14 April 2025 but never served.) In breach of the requirement in para 12.1(4), the claim form did not append the award. Both the Main Award and the Costs Award were exhibited to a witness statement dated 10 January 2025 of the claimant’s solicitor, but the evidence shows that this was not served with the claim form, though it was filed. One consequence of this general debacle was that “the award” sought to be appealed and challenged was not precisely identified. This in turn had consequences for the way the argument proceeded at the hearing.[28]An appeal under section 69 must be “on a question of law arising out of an award made in the proceedings.” Therefore, it is first necessary to identify the question of law. As I have said, the claimant failed to do this, but it is easy enough to formulate the question.[29]The second task, however, is to identify the “award” out of which the question of law arises. The claim form identifies only the Main Award. However, the case was presented to me on the basis that the Costs Award was the relevant award. But is the Costs Award an award for the purposes of the 1996 Act? This is a major issue between the parties. Russell on Arbitration (24th edition) states at para 6-002 (footnotes omitted):
“There is no statutory definition of an award in English arbitration law despite the important consequences which flow from an award being made. In principle an award is a final determination of a particular issue or claim in the arbitration. It may be contrasted with orders and directions of the tribunal which address the procedural mechanisms to be adopted in the reference. Such procedural orders and directions are not necessarily final in that the tribunal may choose to vary or rescind them altogether. Thus, questions concerning the jurisdiction of the tribunal or the choice of the applicable substantive law are suitable for determination by the issue of an award, whereas rulings on the nature and timing of procedural steps to be taken in the arbitration or the extent of disclosure of documents are procedural in nature and are determined by the issue of an order or direction and not by an award. The distinction is important because an award can be the subject of a challenge or an appeal to the court, whereas a procedural order or direction in itself cannot be so challenged. A preliminary decision, for example of the engineer or adjudicator under a construction contract, which is itself subject to review by an arbitration tribunal, is not an award.”
The second sentence of that paragraph reflects section 47 of the 1996 Act.[30]The informality of what I have called the Costs Award is not itself determinative. Section 52 of the 1996 Act makes provision for the form of an award. However, the consequence of a failure to comply with the requirements as to the form of an award is simply that it may give rise to a ground of challenge to the award under section 68. Such challenges will be rare, because a failure to comply with the requirements as to form will only amount to a serious irregularity for the purposes of section 68 if it “has caused or will cause substantial injustice to the applicant”: section 68(2). See Russell on Arbitration, para 6-046.[31]The critical question, however, is whether the Costs Award was an award at all. In my judgment, it was not. The Arbitrator was not purporting to determine an application for costs; that is why he responded, without any formality, by a short, unsigned email and without giving directions for the determination of the issue of costs or seeking any representations from the defendant. He was not purporting to make an award; he was declining to make an award, and I cannot see that he could have done so more clearly. To say, as the claimant is in effect saying, that by refusing to make an award he was making an award is a “heads I win, tails you lose” sort of argument.[32]It follows that, in my judgment, the only award in this arbitration, and the only award that can ground an appeal under section 69, is the Main Award.[33]I see no difficulty in analysing the Arbitrator’s Jurisdiction Question as “a question of law arising out of an award made in the proceedings.” This leaves three further questions under section 69: first, whether the appeal is out of time; second, whether the appeal is brought “upon notice to the other parties and to the tribunal”; third, whether the conditions in section 69(3) are satisfied.[34]As regards time limits, section 70(3) requires the appeal to be brought within 28 days of the date of the award. Mr Davies submitted that time must run from the date of the provision of the award, which in this case was 30 November 2024 (or, it now appears, 27 November 2024). I reject that submission. That is not what the 1996 Act says. Further, in the similar situation that arose in Rollitt v Ballard, O’Farrell J proceeded on the basis (agreed between the parties, but clearly correct) that time ran from the date of the award rather than the later date of the release of the award: see [6]-[16]; also [23]-[27]. As to the suggestion that this produces injustice, two points may be made. First, the delay in obtaining the award is liable to be—as it was in this case—because of a delay in paying the arbitrator’s fees; a party can therefore avoid the delay by paying the fees. Second, the court has power to extend time. (I note, also, that, even if one takes the date of the release of the Main Award as 30 November rather than 27 November 2024, the 28-day period expired on 28 December 2024, which was sixteen days before the claim form was filed; therefore, if the relevant award was the Main Award, the appeal is out of time on any view.)[35]If the date of the Main Award were taken to be 21 October 2024, time would have expired on 18 November 2024. I am satisfied that the date shown is erroneous and that the true date of the Main Award was 21 November 2024. This is the factual correction that I have thought it right to permit after circulation of my original draft judgment. On the facts as now established, time expired on 19 December 2024. The claim form was filed 25 days later, on 13 January 2025.[36]In his submissions in support of the request for reconsideration of the original draft judgment, Mr Davies has submitted, to the contrary, that the 28-day period did not start running until 20 December 2024 and that the claim form was therefore filed in time. In reliance on section 70(2)(b) of the 1996 Act, he submitted that an appeal could not have been brought unless the claimant had first applied to the Arbitrator to make an additional award, namely in respect of costs, pursuant to section 57(3). He further submitted that the 28-day time limit for bringing an appeal ran from 20 December 2024, being “the date when the applicant or appellant was notified of the result of [the arbitral process of appeal or review]”: section 70(3). In agreement with Mr Modha, I consider the submission at this point to have crossed the line into impermissible rearguing of the case—a second bite of the cherry. The only reason why it could appear to be purely consequential on an initial factual misapprehension is that everything arises from the claimant’s original failure to present its case clearly. Be that as it may, I would reject the argument now advanced, for several reasons. 1) Although the Main Award did not make express mention of costs as between the claimant and the defendant, the reasoning in paragraph 51 showed clearly that the Arbitrator was deciding that he had no jurisdiction to make an award in respect of costs; he was not just overlooking the question of costs. (That this was indeed the Arbitrator’s understanding is apparent from his email on 20 December 2024.) Therefore I do not think that section 57(3)(b) was engaged or that it was open to the claimant to extend time for appeal by means of a request for a costs award. 2) The statutory time limit for an application for a further award is 28 days from the date of the award: section 57(4). The date shown on the date of the Main Award, and the date that the claimant’s solicitor was presenting to the court as the date of the Main Award, was 21 October 2024. There is no evidence that the claimant’s solicitor queried the date of the Main Award with the Arbitrator or that he was working on any other basis than either(a) the ostensible date of the Main Award—in which case the request was well out of time—or(b) the date of release of the Main Award, which is not the relevant date. On either basis, the claimant was not addressing the statutory requirement properly. 3) On the other hand, if one takes it (as I do) that the true date of the Main Award was 21 November 2024, the email to the Arbitrator asking him to make a further award dealing with costs was outside the 28-day period specified in section 57(4). Therefore, in the absence of any agreement between the parties to extend the time for applying for a further award, the request to the Arbitrator was invalid unless the court granted an extension of time for such an application under section 79. The claimant has never applied for an order extending the time for an application to the Arbitrator. Further, any such application to the court by the claimant would have had to be made on notice to the defendant and to the Arbitrator: section 79(2)(a). 4) Accordingly, the submission that the time for challenging the Main Award by an appeal under section 69 or an application under section 68 ran from 20 December 2024 is, in my judgment, wrong. Time ran from 21 November 2024. 5) I add that this conclusion makes it unnecessary to consider the meaning of the words “any arbitral process of appeal or review” in section 70(3). This is just as well, as there is divergent opinion on the point and I have received no submissions on it. See Russell on Arbitration at para 8-122. This is what comes of attempts to advance and formulate a previously unstated case in the course of a hearing or even after receipt of a draft judgment.[37]The court has power to extend time for an appeal: section 79. No application for an extension of time was made before the hearing. In the alternative to his primary position that no extension was required because the relevant award was the Costs Award, although that was not identified as the award in the claim form, Mr Davies made an oral application for an extension of time at the hearing. I was referred to no authority at all on the discretion to extend time. However, in Rollitt v Ballard, in the context of a section 68 challenge,O’Farrell J did discuss extensions of time. She said this: “19. The principles applicable to the court’s discretion to extend time were summarised by Popplewell J. in Terna Bahrain Holding Co. WWL v Al Shamsi [2012] EWHC 3283 at [27] to [31]: ‘27. The principles regarding extensions of time to challenge an arbitration award have been addressed in a number of recent authorities, most notably in AOOT Kalmneft v Glencore International AG [2002] 1 Lloyd’s Rep.128, Nagusina Naviera v Allied Maritime Inc [2002] EWCA Civ 1147, L Brown & Sons Ltd v Crosby Homes (North West) Ltd [2008] BLR 366, Broda Agro Trading (Cyprus) Ltd v Alfred C Toepfer International GmbH [2011] 1 Lloyd’s Rep.243, and Nestor Maritime SA v Sea Anchor Shipping Co Ltd [2012] 2 Lloyd’s Rep.144, from which I derive the following principles:(1) Section 70(3) of the Act requires challenges to an award under sections 67 and 68 to be brought within 28 days. This relatively short period of time reflects the principle of speedy finality which underpins the Act, and which is enshrined in section 1(a). The party seeking an extension must therefore show that the interests of justice require an exceptional departure from the timetable laid down by the Act. Any significant delay beyond 28 days is to be regarded as inimical to the policy of the Act.(2) The relevant factors are: (i) the length of the delay; (ii) whether the party who permitted the time limit to expire and subsequently delayed was acting reasonably in the circumstances in doing so; (iii) whether the respondent to the application or the arbitrator caused or contributed to the delay; (iv) whether the respondent to the application would by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application were permitted to proceed; (v) whether the arbitration has continued during the period of delay and, if so, what impact on the progress of the arbitration, or the costs incurred in respect of the arbitration, the determination of the application by the court might now have; (vi) the strength of the application; (vii) whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the application determined.(3) Factors (i), (ii), and (iii) are the primary factors. 28. I add four observations of my own which are of relevance in the present case. First, the length of delay must be judged against the yardstick of the 28 days provided for in the Act. Therefore a delay measured even in days is significant; a delay measured in many weeks or in months is substantial. 29. Secondly, factor (ii) involves an investigation into the reasons for the delay. In seeking relief from the Court, it is normally incumbent upon the applicant to adduce evidence which explains his conduct, unless circumstances make it impossible. In the absence of such explanation, the court will give little weight to counsel's arguments that the evidence discloses potential reasons for delay and that the applicant ‘would have assumed’ this or ‘would have thought’ that. It will not normally be legitimate, for example, for counsel to argue that an applicant was unaware of the time limit if he has not said so, expressly or by necessary implication, in his evidence. Moreover where the evidence is consistent with laxity, incompetence or honest mistake on the one hand, and a deliberate informed choice on the other, an applicant’s failure to adduce evidence that the true explanation is the former can legitimately give rise to the inference that it is the latter. 30. Thirdly, factor (ii) is couched in terms of whether the party who has allowed the time to expire has acted reasonably. This encompasses the question whether the party has acted intentionally in making an informed choice to delay making the application. In Rule 3.9(1) of the Civil Procedure Rules, which sets out factors generally applicable to extensions of time resulting in a sanction, the question whether the failure to comply is intentional is identified as a separate factor from the question of whether there is a good explanation for the failure. This is because in cases of intentional non-compliance with time limits, a public interest is engaged which is distinct from the private rights of the parties. There is a public interest in litigants before the English court treating the court’s procedures as rules to be complied with, rather than deliberately ignored for perceived personal advantage. 31. Fourthly, the court's approach to the strength of the challenge application will depend upon the procedural circumstances in which the issue arises. On an application for an extension of time, the Court will not normally conduct a substantial investigation into the merits of the challenge application, since to do so would defeat the purposes of the Act. However if the Court can see on the material before it that the challenge involves an intrinsically weak case, it will count against the application for an extension, whilst an apparently strong case will assist the application. Unless the challenge can be seen to be either strong or intrinsically weak on a brief perusal of the grounds, this will not be a factor which is treated as of weight in either direction on the application for an extension of time. If it can readily be seen to be either strong or weak, that is a relevant factor; but it is not a primary factor, because the court is only able to form a provisional view of the merits, a view which might not be confirmed by a full investigation of the challenge, with the benefit of the argument which would take place at the hearing of the application itself if an extension of time were granted.” ‘27. The principles regarding extensions of time to challenge an arbitration award have been addressed in a number of recent authorities, most notably in AOOT Kalmneft v Glencore International AG [2002] 1 Lloyd’s Rep.128, Nagusina Naviera v Allied Maritime Inc [2002] EWCA Civ 1147, L Brown & Sons Ltd v Crosby Homes (North West) Ltd [2008] BLR 366, Broda Agro Trading (Cyprus) Ltd v Alfred C Toepfer International GmbH [2011] 1 Lloyd’s Rep.243, and Nestor Maritime SA v Sea Anchor Shipping Co Ltd [2012] 2 Lloyd’s Rep.144, from which I derive the following principles: (1) Section 70(3) of the Act requires challenges to an award under sections 67 and 68 to be brought within 28 days. This relatively short period of time reflects the principle of speedy finality which underpins the Act, and which is enshrined in section 1(a). The party seeking an extension must therefore show that the interests of justice require an exceptional departure from the timetable laid down by the Act. Any significant delay beyond 28 days is to be regarded as inimical to the policy of the Act. (2) The relevant factors are: (i) the length of the delay; (ii) whether the party who permitted the time limit to expire and subsequently delayed was acting reasonably in the circumstances in doing so; (iii) whether the respondent to the application or the arbitrator caused or contributed to the delay; (iv) whether the respondent to the application would by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application were permitted to proceed; (v) whether the arbitration has continued during the period of delay and, if so, what impact on the progress of the arbitration, or the costs incurred in respect of the arbitration, the determination of the application by the court might now have; (vi) the strength of the application; (vii) whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the application determined. (3) Factors (i), (ii), and (iii) are the primary factors.[38]Having considered this guidance and the factors there identified, I refuse the application for an extension of time for an appeal under section 69, for the following reasons. 1) The delay was substantial. The claim form was issued 25 days late. A delay of that length is to be viewed in the context of the 28-day time limit. 2) The claimant’s delay was unreasonable. While some effort to reach agreement as to costs with the defendant may in itself have been reasonable, the logic of paragraph 51 of the Main Award showed that the Arbitrator was not making an award of costs because he thought that his conclusion as to substantive jurisdiction meant that he had no jurisdiction to decide issues of costs. This was all the clearer in the light of the statement in Directions Order No. 3 that issues of costs would be dealt with in the award. The claimant knew, therefore, that it had not received a costs order in the Main Award. If it wanted to challenge the Main Award, it needed to act promptly upon receipt of it (or at least when the defendant received it, three days later). The claimant did not even seek to renew the costs issue with the Arbitrator until after the expiry of the time limit for appealing. The Arbitrator replied immediately. There was then the period of delay after the expiry of the 28-day time limit, between 20 December 2024 and 13 January 2025. I appreciate that Christmas and the New Year fell in this period. However, in view of the prior periods of delay it was incumbent on the claimant to act quickly if it wished to challenge the Main Award. A delay of 24 days after the exchange of emails with the Arbitrator was unreasonable, in my view. 3) The claimant did not comply with CPR r. 62.9(3), which specifies how an application is to be made after the expiry of the 28-day period. Further, no application for an extension of time had been made at any time in advance of the hearing, even though the defendant’s evidence and skeleton argument had expressly taken the time-limit point in early March 2025. The application was made informally, at the hearing, without prior notice to the defendant. Mr Modha did his best to deal with it but was placed in an invidious position. 4) In my view, the need for reconsideration of this judgment, with the consequent delay in its completion, resulted in major part from the failure of the claimant to address the appeal properly. Mr Davies’s complaint was that I was misled as to the date of the Main Award by those acting for the defendant and, in particular, by Mr Modha’s submissions. I regard that as unfair. Mr Davies did not act in the arbitration; Mr Modha did. But the true date of the Main Award is to be inferred from the chain of emails passing between the Arbitrator and the parties’ respective solicitors, who acted both in the arbitration and in these proceedings and who were, as I understand it, present on the CVP link at the hearing before me. I consider that the representatives of both parties were equally able to correct any misapprehension as to the date of the Main Award, and that Mr Modha was apparently in no better position than Mr Davies to know that the date shown on the Main Award was incorrect. The material now adduced to establish the correct date of the Main Award was all available to the claimant’s solicitor before the hearing, yet it was paragraph 8 of his own witness statement that stated, without any qualification:
“The Award is dated 21 October 2024 but was not handed down until 30 November 2024 as release of the Award was being held until both parties had paid the Arbitrator’s fees.”
The principal reason that this whole problem has arisen is that the claimant failed to make the application for an extension of time in a proper manner and failed to identify the issues. 5) No notice of the application for an extension of time was given to the Arbitrator. Such notice is expressly required by section 79(2)(a). Mr Davies told me that notice of the proceedings was given to the Arbitrator on 6 May 2025—nearly five months after the proceedings were commenced. Of course, I accept what he told me, though there was no evidence of such notice. But the notice of the appeal, even if sufficient for the purposes of section 69(1), cannot have constituted notice pursuant to section 79(2)(a) of an application to extend time, because no such application had then been made. 6) I have borne in mind that my decision on the Arbitrator’s Jurisdiction Question is in the claimant’s favour and that its substantive case therefore has merit. That weighs less heavily with me than it might otherwise have done, however, in circumstances where a principal reason why I did not determine the application for leave on the papers in the usual way was the procedural disarray of the application, and where there was no application of any sort for an extension of time until I had already received submissions on the substantive issues. I also observe that any wider advantage than solely to the parties that might accrue from judicial consideration of the Arbitrator’s Jurisdiction Question has—largely as a result of the unsatisfactory manner in which the claimant has brought the appeal proceedings—been achieved by the earlier parts of this judgment; therefore any advantage of having a judicial decision on the point is not a strong factor in favour of an extension of time. 7) General considerations of fairness have not disposed me to accede to the application for an extension of time. As I have indicated, in almost no respect did the claimant comply with the (very simple) requirements for an appeal under section 69. I declined to strike out the proceedings for disregard of Practice Direction 62, but I am entitled to have regard to that disregard when deciding whether to exercise a discretion to extend time in favour of the claimant.[39]Accordingly, I refuse leave to appeal.[40]If I had regarded the application for leave to appeal as having been brought within time, or if I had been willing to extend time for the application, I would still not have granted leave to appeal, as I am not persuaded that the conditions for the grant of leave as set out in section 69(3) are satisfied. The claimant failed to state the grounds on which it alleged that leave to appeal should be granted, as required by section 69(4). Anyway, I am not satisfied that the condition in section 69(3)(c) is met. As to the first alternative in that paragraph, although I am firmly of the view that the Arbitrator’s opinion as to his lack of jurisdiction to make an award of costs was wrong, I do not think that it was “obviously wrong”. The meaning of those words was considered by the Court of Appeal in HMV UK v Propinvest Friar Limited Partnership [2011] EWCA Civ 1708, where at [8] Arden LJ quoted Akenhead J’s expression “major intellectual aberration” In Braes of Doune Wind Farm (Scotland) Ltd v Alfred McAlpine Business Services Ltd [2008] 1 Lloyds Rep 608. and said that she found it “a useful way of bringing to mind that the error on which we are concerned, if there be an error, must be an obvious one.” The existence of doubt on the legal question that the Arbitrator is said to have got wrong is clear from the Law Commission’s report and from the perceived need to clarify the law by an amendment of the 1996 Act, as well as from Chitty on Contracts. I think that the Arbitrator’s view of the law was indeed wrong, but I do not think that it was “obviously wrong”. As to the second alternative in section 69(3)(c), I do not think that the legal question is one of general public importance—at least, not in the sense of requiring judicial determination on an appeal from an arbitration award. Although the Law Commission’s report shows that the Arbitrator’s Jurisdiction Question has divided opinion, there is no evidence that the point has in the past occasioned practical difficulties. The application for permission to appeal is being considered after amending legislation has been passed, albeit that it is not yet in force, so that there is little likelihood that problems will arise in the future. (In fact, I would hope that there is even less likelihood in view of my decision on the point.)[41]In addition, in the light of the procedural defaults of the claimant, I should not have regarded it as “just and proper in all the circumstances” for the court to determine the issue raised by the appeal, as required by section 69(3)(d).

The Challenge: section 68

[42]In my judgment, there can be no challenge to what I have called the Costs Award, because it is not an award at all. The basis for challenging the Main Award is that the Arbitrator failed to deal with all the issues that were put to him, in that he failed to deal with the issue of costs as between the parties: section 68(2)(d). Although some reliance was placed in argument on section 33 of the 1996 Act, I do not consider that the Arbitrator can properly be said to have failed to comply with his general duty under that section.[43]I have, after a degree of vacillation on the point, come to the view that the Arbitrator did not fail to deal with the issue of costs because, although he did not expressly say anything about costs as between the claimant and the defendant, it was inherent in his reasoning that he was deciding that he could not make an award in that regard. Therefore I do not think that there was a serious irregularity within the terms of section 68.[44]If I had been of the opinion that, to the contrary, there was a failure to deal with the issue of costs, I would have concluded that the failure had caused substantial injustice to the claimant. However, the time limit in section 70(3) applies to challenges under section 68 as it does to appeals under section 69. With the exception of my remarks about non-compliance with para 12 of PD 62, the reasons given above for refusing to extend time for an appeal apply equally to the section 68 challenge, and I would have refused to extend time.

Conclusion

[45]The Claim under section 63 is dismissed.[46]I refuse to extend time for the section 69 Appeal and refuse leave for the Appeal.[47]The section 68 Challenge is dismissed.[48]Accordingly the proceedings are dismissed.