Remedies Against the Reluctant Respondent: The Position Under English Law

Abstract

It is a fact of life that respondents in arbitration proceedings – and claimants who face substantial counterclaims – sometimes go to great lengths to delay the making of a final award. The motive for doing so will often be to put off the day of financial reckoning. A favourite ploy of those seeking to delay matters is to ignore a time table fixed by the arbitrator, or to fail to comply with the arbitrators' directions for the delivery of pleadings, particulars and a mutual exchange of documents. There are other ways of achieving delay but it does not seem in the public interest that a poacher who has turned gamekeeper should provide a handy list of those other methods!* Deliberate delaying tactics are not, of course, a new development but the economic conditions of recent years has certainly accentuated the problem. The problem has often been identified, and there have been frequent calls for law reform, but to the best of my knowledge no concrete and practical proposals have ever been made. In the Commercial Court Users Conference Report of 1962 (Cmnd 1616, at p. 22) there was a lament that arbitrators' directions are often disregarded and it was said that arbitrators are virtually helpless in the face of such tactics. No proposal for reform was made. The Commercial Court Committee Report of 1978 (Cmnd 7284, para. 57), again drew attention to the problem. It was pointed out that in the limited areas covered by Section 12(6) of the Arbitration Act 1950, the assistance of the Court can be invoked. From a practical point of view that court assistance in respect of delaying factors appears to be limited, by the terms Section 12(6), to orders for discovery, giving of evidence under oath and the examination of witnesses before …