UK: (1) Colliers International Property Consultants ("CIPC") & (2) Colliers International Property Consultants Inc. ("CIPC Inc") v Colliers Jordan Lee Jafaar SDN BHD: Commercial Court´s Pragmatic Approach To Procedural Defects

Last Updated: 16 September 2008

This was a dispute which was originally taken to ICC arbitration in London and a final arbitration award made in favour of the Claimants. Subsequently, the Commercial Court made an order without notice pursuant to the Claimants' application under section 66 Arbitration Act 1996 for a judgment to be entered against the Defendants in the terms of the Award. The Defendant applied to have the Order set aside, arguing that the procedure before the original commercial judge had been flawed. The matter came before Mr. Justice Beatson, who dealt with each of the alleged flaws in procedure cited by the Defendant in turn.

Defects in the claim form and witness statement.

DEFENDANT'S POSITION

The Defendant argued that because the claim form and witness statement in support of the claim form had not been signed by the Claimants' solicitors, they did not constitute evidence in support of the Claimants' application under section CPR 62.18(6), alternatively that the evidence put before the original judge, Mr. Justice Cresswell, was defective.

The Defendant further alleged that (a) the First Claimant, CIPC, was an unincorporated association, not a legal entity and (b) the Second Claimant was not a member of the Colliers group but only a company formed by members to hold trademarks for the benefit of members. Consequently, the Defendant argued that the claim form was defective.

In addition, the Defendant maintained that the arbitration agreement between the parties was not put properly before Cresswell J. because he only saw the copy signed by the Defendant and not by the Claimants.

CLAIMANTS' POSITION

The Claimants admitted that the claim form and witness statement had not been signed as required by the Rules but asked the judge to use his power under CPR 3.10 to remedy the procedural defect and give the Claimants 7 days to file and serve copies of the claim form. The Claimants did not accept any of the other alleged irregularities but maintained that in any event, they did not justify the Order being set aside.

COURT'S POSITION

The commercial judge took into account counsel's submissions that the unsigned documents resulted from a clerical and accidental error, further that the Claimants were prepared to pay the Defendant's costs in relation to this issue and that the Defendant had suffered no prejudice due to the error. The judge referred to CPR 22.2 and said that the usual order in the case of a failure to verify a statement of case was to allow the party in default a certain time to file a verified document, failing which the statement of case would be struck out. He added that to set aside the Order on this ground alone before giving the Claimants the opportunity to rectify the position would be disproportionate.

The judge made reference to "Philips v Symes" [2008] UKHL 1, where the House of Lords was asked to deal with a situation where a defendant did not receive any of the claim documents posted to it and where another defendant was not served with a translation of the claim form. Nonetheless, the House of Lords decided that the defendants had not been prejudiced by the failure to serve the original claim form but were only seeking to exploit the faults of the Swiss authorities and Swiss post office. Applying that decision to the present case, Mr. Justice Beatson held there was no reason to adopt an unduly restrictive approach to the exercise of the remedying power.

The judge also rejected the Defendant's submissions regarding the descriptions of the Claimants on the grounds that the arbitrators had previously rejected the Defendant's allegations that the Claimants were improperly described. The judge held that it was clearly appropriate for the parties to be identified in the arbitration claim form as they were identified in the Arbitration Award. He also held that the Second Claimant had the same interest as the members of Colliers in relation to the Award because the Award was made to both Claimants jointly.

Finally, the judge rejected the Defendant's complaint regarding the exhibiting of the arbitration agreement without the signature of the Claimants. CPR 62.18(6) was limited to the production of the arbitration agreement and that had been exhibited.

Defects in the Order

Counsel for the Defendant argued that Cresswell J.'s Order was confusing, inappropriate and defective. Firstly: the Order provided for the judgment sums to be paid within 4 weeks of the Arbitration Award but that was impossible given the Award was 18 months old. Secondly: the Order provided for the Defendant to have 14 days to apply to set aside the Order i.e. 14 days from the date of the Order not from the date of service. Counsel for the Defendant argued that the Claimants should have drawn the judge's attention to the fact that the Order would have to be served out of the jurisdiction so that a longer period than 14 days could be specified.

Again the judge rejected these submissions and stated that the sum due under the Award was due and once judgment was entered in the terms of the Award, the judgment became immediately enforceable. Any ambiguity in the terms of the Order could have been resolved by the Defendant taking legal advice. As regards the failure to draw the original judge's attention to the fact the claim form had to be served out of the jurisdiction so that a period of 24 days instead of 14 days should have been specified for an application to set aside the order, Mr. Justice Beatson did not consider this to be material non-disclosure in an application made without notice.

Defects in the service of the Order on the Defendant.

The Defendant argued there was incomplete service on it in Malaysia and relied on rules of the High Court of Malaysia which required an original document to be produced for comparison where photocopies were served. However, the judge held that there was no direct evidence that the originals had not been shown to the relevant persons served for comparison. In fact, someone at the Defendant's office had stamped and signed the back of the original order. Furthermore, the absence of photocopies of the exhibits to the statement did not invalidate service because CPR 62.18(8) only required that the Order itself be served. The Defendant did not ask the Claimants for complete copies of the exhibits nor had it suffered any prejudice. In any event, even if there had been a defect in service, the judge did not believe it would have justified setting the Order aside. At most, the Defendant could have asked for service to be set aside.

Having given short shrift to each and every one of the Defendant's attempts to win the day on the basis of procedural defect or irregularity, the judge then refused the Defendant's application under section 68 Arbitration Act 1996 for an extension of time in which to challenge the Award. Firstly, two years had passed since the final Award and there was a strong policy in favour of finality in arbitrations. Secondly, the Claimants had not contributed to any delay, neither had the arbitrators. Furthermore, the Defendant had continued to participate in the arbitration after a partial award had been made which it now sought to challenge.

The practical and pragmatic approach of the commercial court in this case will come as a relief to litigators and litigants alike. Nonetheless, this decision should not be read as carte blanche for lawyers to become less vigilant in ensuring that all procedural requirements have been complied with. Irrespective of whether the court will entertain arguments based on such technical points, it looks unprofessional to say the least from a client's point of view that the solicitor in question might have been less than thorough in his or her preparations. The client will also not look kindly on the possibility of a challenge being made and costs being incurred because of a slip-up that might have been easily avoided.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions