England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(Mr Justice Andrew Smith)

		The Royal Courts of Justice The Strand London Wednesday 16 July 2002

Wednesday 10 July 2001

1. LORD JUSTICE MANCE: This is an appeal with permission against the judgment and order of Andrew Smith J dated 6 December 2001. The appellants were the owners of the vessel "Maria K". By an interim award, published on 23 January 2001, they failed to obtain relief against the charterers, the respondents to this appeal, in respect of alleged slowness in discharging a vessel which had been time chartered for a trip.
2. The judge described the essential issue in paragraph 3 of his judgment as being:

"whether charterers, under a trip charter with no duration are under any obligation as to the time within which discharge of the cargo is to be effected and, if so, what the nature of that obligation is."

3. It is, one might say, an unusual contention that charterers are under such an obligation under such a charter, but Mr Hancock QC, who appears before us for the appeallants, says that the point does, on any view, raise a matter of general importance which could have considerable financial implications; in particular, one supposes, if the market had gone up or perhaps where owners had lost some subsequent engagement about which the charterers had known.
4. The respondent charterers are Allied Maritime Co, a company incorporated in Iberia but evidently carrying on business in Greece. They argued successfully that their payment of hire, as stipulated in the trip time charter, was not accompanied by any further relevant obligation. The owners wished to appeal against the arbitrator's conclusion in favour of the charterers on that point. But the owners' club, the Newcastle P&I Association, after considering the cost, decided not to support them. That was on or about 9 February 2001.
5. The owners therefore instructed Constant & Constant themselves and issued a Part 8 claim form on 13 February 2001. On the same day they obtained an order from David Steel J in terms as follows:

"This application is not in proper form. [There followed a reference to the Arbitration Practice Direction, paragraph 4.] Leave to service out is probably appropriate. The application for extension of time is not understood. Leave to serve out."

6. The reason the judge did not understand the application for an extension of time was no doubt that it was not explained. It probably referred to the fact that under the Practice Direction in respect of Arbitration, paragraph 27.2, the appellant owners had 21 days from 23 January 2001 to serve the Part 8 claim form.
7. What the owners did, having issued the claim form on the 21st day, the last day for such service, was to fax a copy to the charterers in Greece -- it is not suggested that this could constitute service -- and also sent a copy by fax for the attention of Mr Ayliffe at the Newcastle P&I Association, since this happened also to be the respondent charterers' P&I club, and had acted for the respondent charterers in the arbitration. Mr Ayliffe was the club's in-house lawyer with the conduct of the arbitration for the charterers. The fax was, however, sent after business hours at 18.28. It read as follows:

"Please find attached copies of the following:

• Part 8 Claim Form.

• Application Notice.

• Witness Statement of Graham Crane.

No doubt, you will be nominating solicitors, since this is now a court matter. Service process is now in train but to avoid unnecessary costs we suggest that you also instruct solicitors to acknowledge service within the jurisdiction. An Order granting leave to serve out of the jurisdiction was obtained today and we shall forward a copy of the sealed Order to you tomorrow."

8. The association and the charterers did not respond by appointing solicitors as requested.
9. On 22 May 2001 the owners instructed Greek lawyers to effect service in Greece and on 31 May 2001 they asked the Senior Master to effect service through judicial channels. The judge described the delay as "unexplained". Mr Hancock acknowledges that such information as does exist about what was going on between 13 February 2001 and the end of May 2001 is of the sparsest. It appears that translations were made during this period. That is all that has been said in evidence and it clearly cannot excuse the very great bulk of the delay of over three months from mid-February to the end of May 2001. Service was in the event only effected through judicial channels on or about 3 September 2001.
10. The charterers on 13 September 2001 maintained that such service was out of time, referring to the 21-day period in paragraph 27.2 of the Practice Direction - Arbitration, and on 28 September 2001 they applied for a declaration that the court had no jurisdiction over them, both on this and other grounds.
11. On 22 November 2001 the appellant owners informed the respondent charterers that they themselves intended to apply, and on 23 November they did apply, for a number of orders, including an extension of the validity of the claim form of 13 February 2001 under CPR 7.6, coupled with an extension of time for service under CPR 3.1(2)(a); an order for service by an alternative method under CPR 6.8; and relief remedying a procedural error under CPR 3.10, or various alternative relief. We were told that a hearing for the respondents' application had already been fixed on the basis that some such counter-applications would be forthcoming, and the delay in formally announcing them is unlikely to have added to the overall delay. Andrew Smith J refused the appellants any of the relief they had sought. He declared in the respondents' favour that the claim form had not been served within the period of its validity and set aside the service which had been effected.
12. The appellants seek to challenge certain critical aspects of the judge's reasoning. I can summarise the points now in issue as being basically four, although in order to clarify them for the purposes of this judgment I would express them slightly differently from the way in which Mr Hancock has put them in his skeleton.
13. Did the copying of the fax of 13 February 2001 to Mr Ayliffe at the respondents' club constitute service on the respondent charterers? If so, then the only question arising is whether, having regard to the fact that it was sent after office hours, an extension of time of one day ought to be granted to validate such service. It is not, I think, seriously suggested that in those circumstances such an extension should not be granted. On that basis, if the question is answered affirmatively the appeal should succeed.
14. If the owners fail on point 1, the next question is whether the 21-day time limit in Practice Direction - Arbitration paragraph 27.2 is the only relevant time limit, or whether CPR 7.5 also constitutes an overlapping or additional obstacle. Practice Direction - Arbitration paragraph 27.2 reads:

"In the case of an appeal to the Court under section 1(2) of the Arbitration Act 1979, the application for permission to appeal, where permission is required, and the Part 8 claim form must be served and the appeal entered, within 21 days after the award has been made and published to the parties. Provided that, where reasons material to the appeal are given on a date subsequent to the publication of the award, the period of 21 days shall run from the date on which the reasons are given."

15. The latter proviso does not here apply. CPR 7.5 read, in the form in which it was at the relevant time:

"(1) After a claim form has been issued, it must be served on the defendant.

(2) The general rule is that a claim form must be served within 4 months after the date of issue.

(3) The period for service is 6 months where the claim form is to be served out of the jurisdiction."

16. If CPR 7.5 does constitute an additional hurdle, can the appellants either satisfy the requirements of CPR 7.6 for obtaining an extension of the period within which the claim form may be served; or avoid the whole problem by seeking an order under CPR 6.8 for alternative service?
17. If CPR 7.5 is inapplicable, the only obstacle remains the Practice Direction - Arbitration 27.2. Can the owners overcome that obstacle by seeking an extension of the 21-day period under CPR 3.1(2)(a); or by (as Mr Hancock has stressed before us) simply seeking an extension of the 21-day period for the issue and service of a new claim form?
18. A possible fifth issue is whether the judge was right to strike out the claim for want of due dispatch. However, it is accepted, as I understand it, that the answer to this must essentially follow from the answers given on the previous issues.
19. I turn to these issues.
20. I take the first: did the copying of the fax to the club constitute service? The judge said as to this:

"18. It is convenient first to consider Mr Hancock's argument that the claim form was served on 13 February 2001. He says that it was served when it was sent by fax that day to Mr Ayliffe. As he points out, under CPR Part 6.2(1), 'a document may be served by any of the following methods ... (e) by fax or other means of electronic communication in accordance with the relevant Practice Directions'. The Practice Direction - Service provides at paragraph 3 (as far as relevant) as follows: ' ... where a document is to be served by facsimile (fax);

(1) the party who is to be served or his legal representative must previously have indicated in writing to the party serving - (a) that he is willing to accept service by fax, and (b) the fax number to which it should be sent.

(2) if the party on whom the document is to be served is acting by a legal representative, the fax must be sent to the legal representative's business address, and

(3) a fax number ... (b) set out on the writing paper of the legal representative of the party who is to be served ... shall be taken as sufficient written indication for the purposes of paragraph 3.1(1).'

Mr Hancock says that Mr Ayliffe was the Charterers' legal representative for the arbitration, and the documents were sent to the fax number which had previously appeared in communications from Mr Ayliffe in that capacity.

19. Mr Bryan does not challenge the factual basis for Mr Hancock's argument: that is to say, he does not dispute that Mr Ayliffe was the Charterer's legal representative in the arbitration reference, or that documents were sent on 13 February 2001 to a fax number on his writing paper. He advances three points in answer to Mr Hancock's argument.

20. His first submission is that under CPR 6.7(1), the fax being transmitted after 4pm on 13 February 2001, it is not to be deemed to be served until the next day. Accordingly it was served one day after the 21 days specified in the Practice Direction, and the Owners require an extension of that period by one day. This submission, as far as it goes, seems to me correct.

21. Mr Bryan's second submission is that Mr Ayliffe was not a legal representative of the Charterers in any relevant sense. He draws my attention to the definition of legal representatives in CPR 2.3(1): 'legal representative means a barrister or a solicitor, solicitor's employee or other authorised litigator ... who has been instructed to act for a party in relation to a claim'. Mr Ayliffe had not been instructed to act in relation to the application to appeal from the arbitration award. In this context, Mr Bryan submits that before the CPR it was well established that a solicitor instructed in relation to a reference did not thereby have authority to accept service of proceedings relating to an appeal from the award. With regard to arbitration applications under the 1996 Act, the Practice Direction at paragraph 7.2(3) provides that the Court may authorise service of the arbitration claim form on a solicitor or other agent within the jurisdiction who represented a party in the arbitration proceedings and was authorised to receive service of any notice or other document served for the purpose of those proceedings, and has not at the time when the arbitration application was made had his authority determined. However, there is no comparable provision with regard to applications under the 1979 Act.

22. Mr Hancock's response to this submission is that it is immaterial whether or not before the introduction of the CPR service upon a solicitor in Mr Ayliffe's position would or would not have been valid. The definition of a legal representative is one who is instructed in relation to 'a claim'. Mr Ayliffe was instructed in respect of the same claim as is the subject of these proceedings brought by the owners. It would be in accordance with the over-riding objective to recognise service upon him.

23. I reject Mr Hancock's submission. I consider that the word 'claim' in the definition of legal representative refers to the proceedings which are brought in the Court other than the underlying cause of action of the complaint. If the CPR were allowing proceedings to be served upon a party's lawyer although the lawyer had not been instructed in relation to them, more explicit words would have been used.

24. Mr Bryan's third argument is that the Owners, when they sent the fax to the Club for the attention of Mr Ayliffe, were not purporting or intending to effect service. The fax was in fact addressed to the Charterers, and it was only copied to Mr Ayliffe. Moreover, the fax itself referred to the application for leave to serve out of the jurisdiction and invited the nomination of solicitors. Mr Hancock does not suggest that subjectively Constant & Constant were intending to serve the Charterers by sending this fax to the Club, but says that that does not affect the position. Moreover, he acknowledges that if the Owners had expressly stated that they were sending the document otherwise than by way of service, he could not advance this argument. It seems to me that the position cannot be different if that is the implication of their message under cover of which they sent the documents, and I consider that it was."

21. It is the judge's answer in respect of Mr Bryan's second submission that is, in my view, decisive. A "legal representative" by whom a party is acting for the purposes of paragraph 3 of the Practice Direction – Service means, as the judge set out, a lawyer "who has been instructed to act for a party in relation to a claim". Here, in my judgment, that must mean instructed in respect of the particular claim to which the service relates, and that in turn must mean the arbitration claim begun by the issue of a Part 8 claim form on 13 February 2001. Admittedly that was an arbitration claim which sought permission to appeal in respect of a previous arbitration; but that does not mean that, for the purposes of the rules, which of course only govern that separate arbitration claim, it was not a separate claim in the context of the definition of legal representative.
22. There is a notable distinction between the provisions dealing with service on a legal representative contained in CPR part 6.1(1), on which Mr Hancock seeks to rely, and the provisions governing applications for permission to appeal under arbitrations subject to the 1996 Arbitration Act. The latter applications are the subject of a specific paragraph in the Practice Direction -Arbitration. That is paragraph 7.2(3) which provides that:

"Where the Court is satisfied on an application made without notice that .... the respondent to the arbitration application (not being an individual residing or carrying on business within the jurisdiction or a body corporate having a registered office or a place of business within the jurisdiction)

(a) is or was represented in the arbitral proceedings by a solicitor or other agent within the jurisdiction who was authorised to receive service of any notice or other document served for the purposes of those proceedings; and

(b) has not (at the time when the arbitration application is made) determined the authority of that solicitor or agent,

the Court may authorise service of the arbitration claim form to be effected on the solicitor or agent instead of the respondent."

23. It is to be noted, first, that that is a very specific provision dealing with the present well-known problem, namely that of a party to arbitration who refuses to appoint a lawyer in respect of an application made to the court related to the arbitration; and, secondly, that the provision is one which does not entitle a party to serve on a legal representative; it merely entitles him to apply to the court which may, if it thinks fit, allow such service.
24. The gist of Mr Hancock's submissions is to make that provision otiose, at least in a context where service by fax is in question; and no doubt service by fax would, if Mr Hancock was right, very often be something which would be undertaken. Still more to the point, the fact that this very specific and carefully-tailored provision was included makes it in the highest degree improbable, as I see it, that CPR 6.2, dealing with service on a legal representative who has indicated that he is willing to accept service by fax and has indicated a fax number, can embrace the present situation. In my judgment, therefore, the judge was clearly right in rejecting the argument that the fax was properly served on 13 February 2001.
25. I would only add that I also find it difficult to fault the judge's conclusion in respect of Mr Bryan's third point, namely his conclusion that service was not effected because the terms of the fax (which I have read) indicated that it was not being effected but, on the contrary, was being put in train by another process; as indeed happened, although with great dilatoriness.
26. Whether or not there has been service is, I accept, a matter to be assessed objectively. That means that it cannot depend on private intentions. But if a party discloses, or says expressly, that he is not serving, how can it lie in his mouth later to turn round and assert that he was? Service has certain consequences for both parties. The party served is obliged to take certain steps, particularly to file an acknowledgment of service under CPR 10.3 within 14 days, in the ordinary case. For those reasons, therefore, it seems to me that the first issue identified earlier in this judgment must be answered in the way in which the judge answered it.
27. It is unnecessary, in the circumstances, to express any view about a further point which the judge raised without having heard argument upon it, namely that the Practice Direction relating to Service by fax might, in paragraph 3.1(3) only be defining the circumstances in which a party has satisfied the second requirement at 3.1(1). For my part I should not be taken to be assenting to that proposition, although we too heard no argument on it.
28. I move to the other issues. If the owners fail, as they do in my view on the first issue, it is, I think, possible to short-circuit the remaining issues to some extent, or to take them at any rate compendiously. This is so because Mr Hancock, who put his submissions most realistically, accepts, and indeed asserts, that his case can be viewed at its highest if one focuses solely on the existence of the 21-day period under the Practice Direction – Arbitration, and treats the essential issue as being whether discretion should have been exercised in his client's favour under CPR 3.1(2)(a) to extend the 21-day period by such period as would validate the original Part 8 claim form or permit the issue of a fresh Part 8 claim form under the Arbitration Acts 1950-79.
29. This is a focus which would, of course, arise only if one of various other conditions were satisfied: one being that CPR 7.5 is inapplicable to a Part 8 claim form of the present nature; a second being that, although CPR 7.5 is applicable, it is for some reason right to ignore it when deciding whether or not now to permit an extension or the issue of a fresh claim form;and the third being that, although CPR 7.5 is applicable, the owners could avoid its impact either under CPR 7.6(3) or, possibly, under CPR 6.9(1). In view of the conclusions to which I have ultimately come on the issue of discretion, I think it unnecessary to decide whether any of these conditions would apply. However, since my grant of permission to appeal was influenced by the view that the judge may have been wrong to conclude that CPR 7.5 operated cumulatively with the Practice Direction - Arbitration, paragraph 27.2, I would confirm that I remain very doubtful about the correctness of the judge's conclusion that the two can operate cumulatively. Both were expressed to deal with a period for service of a claim form. It seems to me that paragraph 27.2 of the Practice Direction - Arbitration does on its face, and in this particular context, replace CPR 7.5. Part 49(1) of CPR provides:

"These Rules shall apply to the proceedings listed in paragraph (2) subject to the provisions of the relevant Practice Direction which applies to those proceedings."

30. It then goes on to refer to the Practice Direction to arbitration proceedings.
31. Indeed, not only do I have considerable doubt whether CPR 7.5 could operate alongside paragraph 27.2, it seems to me doubtful whether any of CPR 7 applies to the present type of old Act-type arbitration. However, we did not hear argument on both sides on this point, and I need say no more about it.
32. I turn, therefore, to the issue of discretion, assuming that the only question is whether the undoubted 21-day period in the Practice Direction - Arbitration should be extended. The judgment contains the following relevant passages in two places. First, after his conclusion that the appellants could not obtain an extension under CPR 7.6(3) in respect of the six-month period which the judge thought applied under CPR 7.5, the judge added this:

"39. Even if I did have power, in view of the unexplained delay between 13 February and 31 May 2001 and in making an application for an extension of time for service, I would not exercise it.

40. Mr Hancock criticised the Charterers for insisting that proceedings be served upon them in Athens. Indeed, he submitted that they should not benefit from adopting such an uncooperative attitude, and indeed that such behaviour is contrary to the obligations of a party to an arbitration agreement. I have sympathy with these submissions. However, it remains the case that as far as the CPR and Practice Direction - Arbitrations are concerned, the Charterers could take the stance that they did. More importantly, this cannot excuse the delay on the part of the Owners. I must consider that delay not only in the context of the private interests of the parties but what Steyn LJ referred to as 'the wider interests at stake, notably the proper functioning of our arbitration system'.

41. The Owners also argue that the Charterers have not shown that they suffered prejudice as a result of the delay. The authorities are clear that it is not necessary for them to do so."

33. Later in his judgment, following his conclusion that CPR 6.9 was of no assistance to the appellants as a way of avoiding the impact of CPR 7.5, the judge said this:

"45. For similar reasons I reject the invitation to extend the 21 day limit so as to allow the Owners to issue and serve new proceedings. Although I have concluded that I would have power to make such an order, I consider that it would be inconsistent with the purpose of the time limit and contrary to the objective of the 1979 Act described by Steyn LJ in the Euston Central case."

34. The judge was there referring to the authority of the Secretary of State for the Environment v Euston Central Investments Ltd [1995] Ch 200 (thus even before the 1996 Act) where Steyn LJ (as he was) considered the rationale of recent legislative and procedural changes in respect of arbitration and said, amongst other things, that:

"The objective of the Act of 1979 was to reduce the scope of the supervisory jurisdiction of the English courts. Contrary to the initial submission of Mr Gaunt [counsel for the appellant] it is not only the private interests of the parties that are relevant. There are wider interests at stake, notably the proper functioning of our arbitration system .... One of the aims of the Act of 1979 was to promote speedy finality in the enforcement of arbitration awards: The Antaios, per Lord Diplock at p 199 and per Lord Roskill at pp 208-209. Since nobody can prevent the losing party in an arbitration from applying for leave to appeal even in the most unmeritorious cases, it is of supreme importance to the proper working of our arbitration system that there must be an effective procedure to ensure that applications for leave are promptly made. That is the policy of the Act of 1979.

Having discussed the philosophy of the Act of 1979, and the impact of The Nema and The Antaios, Mustill & Boyd, Commercial Arbitration, 2nd ed (1989) comments, at page 611:

'It is the duty of the appellant to prosecute his application for leave to appeal and, if leave is granted, the appeal itself with proper dispatch. Failure to do so may lead to the application or the appeal being struck out.'"

35. Lower down the page Steyn LJ referred to an observation of Bingham J (as he was) in Mebro Oil SA v Gatoil International Inc [1985] 2 Lloyd's Rep 234, taking the view that:

"Under the post-1979 dispensation a party who failed to issue an originating motion within 21 days would be at risk of being struck out for want of prosecution."

36. Over the page, he said that:

"... perhaps the requirement, taken from a more elevated context, that action must be taken 'with all deliberate speed' sums up neatly what is required: see Brown v Board of Education of Topeka (1955) 349 US 294, 301. And a failure to act accordingly founds the court's discretion to strike out."

37. Mr Hancock pointed out that what was there in issue was the power to strike out, and it is right to add that on the particular facts in the particular case the court declined to exercise that power.
38. For the proper exercise of the power, Mr Hancock referred us more particularly to guidance given by Colman J in the case of Aoot Kalmneft v Glencore International AG [2002] 1 Lloyd's Rep 128, especially paragraph 59 at page 137, when considering an application for an extension of time. There were in that case four applications --under different sections, of course, to the present case. They were applications in particular under section 68 of the 1996 Act to set aside a ruling on the ground of serious irregularities affecting the proceedings, combined with an application for an extension of time, as well as an application to have a ruling set aside under section 67 of the 1996 Act on the ground of want of jurisdiction, again combined with an application for an extension of time. Colman J said this:

"Accordingly, although each case turns on its own facts, the following considerations are, in my judgment, likely to be material:

(i) the length of the delay;

(ii) whether, in permitting the time limit to expire and the subsequent delay to occur, the party was acting reasonably in all the circumstances;

(iii) whether the respondent to the application or 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 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."

39. Mr Hancock submitted to us that Andrew Smith J had failed to express or undertake any similar exercise. However, it is clear that Andrew Smith J had well in mind as primary factors the length of the delay, its causation and the reasonableness of both parties' conduct: that is factors (i)-(iii) identified by Colman J. As to factor (iv), he also referred to prejudice, pointing out, correctly in the light of the Euston decision, that prejudice was not an essential pre-condition. I would reject Mr Hancock's submission that that means that Andrew Smith J may have thought that it was not a relevant consideration at all.
40. As to factor (v) identified by Colman J, the judge in the present case rightly underlined the policy of the Act and of the courts in relation to applications for permission to appeal, as stated in the Euston case. We are told that the present arbitration has not proceeded much further, but it seems to me that that is, on any view, a relatively minor factor. A party cannot, by a late application for permission to appeal which happens to have stopped the process of an arbitration (if indeed that is what has happened) significantly improve his position.
41. As to factor (vi), it is right that Andrew Smith J did not explicitly refer to the strength, or indeed the weakness, of the claim. Perhaps this was not discussed before him. Mr Hancock suggested that the present situation was, in any event, one where courts would not engage in any detailed way with the prospects, except perhaps in a clear case. In my judgment, this was, and is, clearly not a case where the owners' claim can be regarded as so strong that it would obviously be a hardship for them not to be able to pursue it; if anything, rather the contrary. On any view, the prospects here were clearly not such as could have affected what was otherwise the judge's view as to the right exercise of his discretion.
42. Finally, as to factor (vii), general considerations of fairness, the judge must have had well in mind considerations of overall justice and fairness. They must, however, always be viewed in the particular context that Parliament and the courts have repeatedly emphasised the importance of finality and time limits for any court intervention in the arbitration process. At the core of Mr Hancock's challenge to the judgment was the proposition that it overlooked the mutual aspects to arbitration and the role that the charterers' uncooperative attitude played in the course of events. If the charterers had appointed solicitors to accept service, as requested on 13 February 2001, then the only necessary extension would have been of a day or so, which would clearly have been forthcoming. As it is, he submitted, their uncooperative attitude meant that there was bound to be delay of some months before service could be effected in Greece, so that an extension of time, at least for that period, was bound to be sought and obtained. In the event, once the Senior Master was involved, service took just over three months.
43. In summary, Mr Hancock's contention is that service could not have been effected until some time probably in the latter part of May, and that the owners' fault merely added a further three or so months to the three months which the charterers' attitude made necessary. Further, he said, if there had not been the charterers' uncooperative attitude, it would not have been necessary to seek leave to serve out of the jurisdiction at all, so the owners' fault would never have occurred.
44. As to that last point, it does not seem to me that an uncooperative attitude can excuse, or in any way justify, subsequent independent fault which arose, on the face of it, entirely because owners failed to do what was obviously incumbent upon them in the circumstances. I would, however, in no way wish either to encourage or to support the generally uncooperative attitude shown by the charterers in the present case. No doubt it was because of the artificiality of conduct such as theirs that the present paragraph 7.2(3) in the Practice Direction - Arbitration was introduced in respect of arbitrations taking place under the 1996 Act. However, I cannot accept Mr Hancock's submission that this uncooperative attitude amounted to a breach by the charterers of their duty of cooperation under the arbitration agreement. Applications to the court for permission to appeal appear to me outside that duty and to be regulated by the court's procedural code. Further, there are, as I have said, very clear limits to the consequences that can be attributed to such an attitude. The charterers were within their rights, even though their attitude was uncooperative, to take the attitude they did and it was for the owners to exercise the compensating rights given to them by the Civil Procedure Rules to cater for the situation.
45. Here a very considerable part -- around half, as Mr Hancock conceded -- of the overall delay is simply an unexplained and inexplicable delay of some three months between mid-February and the end of May. This delay occurred in the context of a rule aiming at service, where possible, within 21 days, subject to such extension as might be necessary to allow service out of the jurisdiction. It seems to me that the judge was right in considering that that delay simply cannot be overlooked.
46. For my part, therefore, I consider that the judge took all relevant matters into account, and that his decision cannot, on any view, be regarded as falling outside the ambit within which reasonable disagreement is possible. I would go further and say that I agree with it. In my judgment, this appeal should therefore fail.
47. LORD JUSTICE LATHAM: I agree.
48. LORD JUSTICE SIMON BROWN: I also agree.
ORDER: Appeal dismissed with costs at an agreed figure of £11,500. (Order not part of approved judgment)