A recent judgment issued by Mr Justice Foxton in the Commercial Court offers an interesting contrast with the recent decision of Mrs Justice Cockerill in FIMbank v KCH Shipping, M/V ‘Giant Ace’. In that case, Cockerill J refused an extension of time under section 12 of the Arbitration Act 1996 (AA 1996), even though the respondent had sent a misleading message to the applicant, on the grounds that it was insufficiently causative of the time bar being missed.
In the present case, Foxton J granted an extension of time on the grounds that the causative nexus between the respondent (Times Trading)’s solicitors’ messages and the missing of the time bar was established. Cockerill J’s decision in FIMBank was distinguished on the grounds that it was a case of ‘mere silence in the face of an insufficiently tested assumption by the claimant’, whereas in the present case the positive conduct attributed to Times Trading was a significant factor in the counterclaimant (NBF) missing the time bar.
Michael Collett QC looks at the case in more detail in a recently published article.
This article was first published by Lexis®PSL on 29/07/2020.