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.


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.


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.


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.

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