TAG WEALTH MANAGEMENT V WEST

[2008] EWHC 1466 Comm, Queen’s Bench Division, Commercial Court, Mr Justice Aikens, 27 June 2008

Arbitration – Award dismissing claim on grounds of inordinate and inexcusable delay – Whether arbitrator had been guilty of serious irregularity in making award – Whether arbitrator guilty of error of law – Arbitration Act 1996, sections 41(3), 68 and 69

TAG, a financial and investment adviser, engaged W under two agency agreements to sell various financial products, including mortgages and life policies. Disputes arose between the parties as to whether W was entitled to retain commissions on life policies which had been written but which had subsequently lapsed and as to whether W could recover commission on renewals. These matters were referred to arbitration and an arbitrator was appointed on 15 January 2002. There were a variety of procedural disputes concerning the disclosure of documents, and in May 2007 TAG stated that it had encountered great difficulties because document storage facilities had been flooded and commission statements over ten years old would have probably been destroyed. On 28 January 2008 the arbitrator heard an application by W to make an award dismissing TAG’s claim under s 41(3) of the Arbitration Act 1996 on the ground of inordinate and inexcusable delay, and an award was duly made which stated that the delays were almost entirely the fault of TAG and that the absence of the relevant documents precluded a fair trial. TAG appealed against the award for serious irregularity (s 68) and also sought permission to appeal for error of law (s 69). Aikens J dismissed both the appeal and the application. (1) As to s 68, the arbitrator had not been guilty of any irregularity at all, let alone irregularity which affected the rights of the parties: he had acted fairly and he had considered all of the issues raised. (2) As to s 69, assertions that the arbitrator had erred in his finding of facts was not an error of law at all, and otherwise there had been no error in the arbitrator’s application of s 69.