“Did NPS fail to advance the plumbing design and fail to provide the details of the cylinder and radiator sizing within the time requirement set out in the default notice?”
“(1) Section 73 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] … 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… [30] Thirdly, factor (ii) is couched in terms of whether the party who has allowed the time to expire had acted reasonably. This encompasses the question whether the party has acted intentionally in making an informed choice to delay making the application … [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 the extension of time were granted.”
“… A contention that the tribunal has ignored or failed to have regard to evidence relied upon by one of the parties cannot be the subject matter of an allegation of a serious irregularity within section 68(2)(a) or (d), for several reasons: i) First the tribunal’s duty is to decide the essential issues put to it for decision and to give its reasons for doing so. It does not have to deal in its reasons with each point made by a party in relation to those essential issues or refer to all the relevant evidence. ii) Second, the assessment and evaluation of such evidence is a matter exclusively for the tribunal. The court has no role in that regard. iii) third, where a tribunal in its reasons has not referred to a piece of evidence which one party says is crucial, the tribunal may have (i) considered it but have regarded it as not determinative, (ii) considered it but assessed it as coming from an unreliable source, (iii) considered it but misunderstood it, or overlooked it. There may be other possibilities. Were the court to seek to determine why the tribunal had not referred to certain evidence, it would have to consider the entirety of the evidence which was before the tribunal and which was relevant to the decision under challenge. Such evidence would include not only documentary evidence but also the transcripts of factual and expert evidence. Such an enquiry (in addition to being lengthy …) would be an impermissible exercise for the court to undertake because it is the tribunal not the court that assesses the evidence adduced by the parties. Further, for the court to decide that the tribunal had overlooked certain evidence, the court would have to conclude that the only inference to be drawn from the tribunal’s failure to mention such evidence was that the tribunal had overlooked it. But the tribunal may have had a different view of the importance, relevance or reliability of the evidence from that of the court and so the required inference cannot be drawn. iv) Fourth, section 68 is concerned with due process. Section 68 is not concerned with whether the tribunal has made the right finding of fact, any more than it is concerned with whether the tribunal has made the right decision in law. The suggestion that it is a serious irregularity to fail to deal with certain evidence ignores that principle. By choosing to resolve disputes by arbitration, the parties clothe the tribunal with jurisdiction to make a wrong finding of fact.”