Times’ up. NBF gets s.12 extension.

The fate of Times’ anti-suit injunction against National Bank of Fujairah was reported in this blog on May 6 2020 –  they got their injunction on condition not to take any time bar point in any subsequent arbitration against them commenced by NBF.

Shortly afterwards, in National Bank of Fujairah v Times Trading Corp [2020] EWHC 1983 (Comm) Foxton J came part two of the saga. NBF had commenced arbitration against the registered owners, Rosalind, within the one year time limit under the Hague Rules, in respect of misdelivery. This expired on 20 June 2019. Shortly after receiving a copy of the bareboat charter, after months of asking, on 20 March NBF then made an application under s.12 of the Arbitration Act 1996, in respect of its claim against bareboat charterer, Times, on the assumption that the one year time bar applied to that claim.

In the first period before 18 January 2019 Times, through their solicitors, Waterson Hicks (WH), communicated in a manner which implied, and contributed to the belief of R&T, acting for NBF, that WH acted for the carrier liable under the Bills of Lading, and for the entity to whom the claims were appropriately addressed. WH acted innocently but Times knew the true position. In the second period after 18 January 2019, the conduct of WH, and of Times, was open to more criticism. The objective effect of the communications of WH and Holman Fenwick and Willan, solicitors for charterers Trafigura who became responsible for handling NBF’s misdelivery claims on behalf of Rosalind and Times, conveyed an impression which did not accord with the facts as Times and the parties acting for them understood them.

The question before Foxton J was whether the effect of this conduct such as to render it unjust hold NBF to the strict terms of the time bar. As regards the first period, the impression given on Times’ behalf, in ignorance of the true position up to 18 January 2019 and with knowledge of it thereafter, was a significant factor in NBF missing the time bar, such that the requisite causative nexus is established which made it unjust to hold NBF to the strict terms of the time bar. The jurisdictional threshold under s.12(3)(b) – whether the respondent’s conduct makes it unjust not to extend time – was satisfied.

On the matter of discretion, it was right to say that there had been significant culpable delay by NBF in failing to seek s.12 relief before it did – delay measured in months rather than merely weeks or days. The delay was particularly difficult to justify from early November 2019, when NBF did not appear to have taken the possibility that Times might be the carrier seriously. However, this was not a case in which it could be said that Times itself played no part in NBF’s delay in the period after 18 July 2019 when Reed Smith sent its letter advising that Rosalind was not the carrier, and that it was Times. However, the continuing refusal to provide a copy of the demise charter could be regarded as a continuation of the approach which had been adopted by or on behalf of Times before 18 July 2019, and which made it unjust to enforce the strict time bar against NBF. Its clear contribution to NBF’s delay in seeking s.12 relief was seen in the fact that, once the Bareboat Charter was produced for the purposes of Times application for an anti-suit injunction, NBF prepared and issued its s.12 application within short order.

The fault of NBF was not a reason for denying its application for relief under s.12, and NBF got its extension.

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