This was an application by National Bank of Fujairah (Dubai Branch) (the applicant) under s 12 of the Arbitration Act 1996 (UK) (the Act) to extend the time for commencing arbitration proceedings against Times Trading Corp (the respondent). The applicant is the holder of 27 bills of lading issued in respect of cargo shipped on the MV Archagelos Gabriel. Cargo from the vessel was discharged without production of the bills of lading against letters of indemnity (LOIs) in June 2018.The applicant alleged that the discharge was wrongful, and that it was entitled to bring claims as the holder of the bills of lading for misdelivery. The bills of lading required all disputes to be submitted to arbitration in London. The applicant commenced an arbitration in London against the registered owners of the vessel, Rosalind Maritime LLC (Rosalind). That arbitration was commenced within the one year limitation period arising under art 3.6 of the Hague Rules, which it has been held at first instance applies to actions for misdelivery where the cargo has been delivered other than against the presentation of bills of lading (Deep Sea Maritime Ltd v Monjasa A/S (The Alhani) [2018] EWHC 1495 (Comm) (CMI154)).

However, it has since been suggested that the carrier under the bills of lading was not Rosalind, but the respondent, to whom Rosalind is said to have bareboat chartered the vessel. If the applicant is required to bring its claims for misdelivery against the respondent, an arbitration in respect of those claims was not brought within one year of the completion of delivery. It is to guard against the possibility that any claims against the respondent are time-barred that the applicant brings this application.

In bringing this application, the applicant does not admit that the respondent is the appropriate defendant to the claim for misdelivery, or that, absent an extension of time, its claim is time-barred. However, the Court is entitled to determine a s 12 application on the assumption that the time bar in question applies to the claimant’s claim, without prejudicing a claimant’s right to argue otherwise subsequently: see The Seki Rolette [1998] 2 Lloyd’s Rep 638, 646 (Mance J). The applicant has already commenced proceedings against the respondent in respect of the alleged misdelivery of the cargo before the High Court of Singapore. The respondent contended that those proceedings were commenced in breach of the binding agreement for London arbitration, and it applied to the Commercial Court for an anti-suit injunction to restrain them. That injunction was granted by Cockerill J, but only on terms that the respondent undertook not to take a limitation defence in the arbitration: see Times Trading Corp v National Bank of Fujairah (Dubai Branch) [2020] EWHC 1078 (Comm) (CMI839). Permission to appeal against the judgment was refused by Flaux LJ. Having failed in its attempt to challenge the condition imposed by Cockerill J, the respondent did not seek to maintain the injunction. Accordingly, it now falls to the applicant to pursue its s 12 application.

Held: It is appropriate to grant the applicant the extension it seeks.

The respondent's conduct (through the law firm Waterson Hicks (WH)) contributed to the confusion regarding the carrier's identity. Was the effect of the conduct such as to render it unjust to hold the applicant to the strict terms of the time bar? The respondent argued that the applicant's Singapore solicitors, Rajah & Tann Singapore LLP (R&T), should have explored the issue of whether there was a bareboat charterparty of its own initiative, and suggests that this was the predominant factor in the applicant missing the time bar. However, the effect of WH’s communication was to reinforce R&T’s erroneous understanding and to put R&T off its guard. This was not a case, therefore, of mere silence in the face of an insufficiently tested assumption by the applicant. The impression given on the respondent's behalf, in ignorance of the true position up to 18 January 2019, and with knowledge of it thereafter, was a significant factor in the applicant missing the time bar, such that the requisite causative nexus is established which makes it unjust to hold the applicant to the strict terms of the time bar. Accordingly, the jurisdictional threshold of s12(3)(b) is passed.

There has been significant culpable delay by the applicant in failing to seek s 12 relief - delay measured in months rather than merely weeks or days. However, while culpable delay at this stage of the enquiry is a factor which is of obvious relevance to the exercise of the Court's discretion, it does not take the discretion away. In SOS Corporacion Alimentaria SA v Inerco Trade SA [2010] EWHC 162 (Comm) [85], Hamblen J referred to delay and fault as 'factors which are likely to be relevant to whether it is just to extend time'. Hamblen J (at [98]) did not regard the significant culpable delay as determinative of this issue, but rather he took 'all these considerations into account'. Cockerill J in Fimbank Plc v KCH Shipping Co Ltd [2020] EWHC 1765 (Comm) [119] (CMI859) observed that the Court’s approach to the issue of delay might be impacted by 'the exact nature of the jurisdictional hurdle, and the margin by which the relevant hurdle was cleared'. In this case, the jurisdictional hurdle was cleared because the respondent, or those acting for it, misled the applicant into believing that they were dealing with the carrier under the bills of lading, and in the period after 18 January 2019, that impression was continued even though those acting for the respondent were aware that the applicant was acting on the basis of a mistaken understanding. That conduct cleared the jurisdictional hurdle by an appreciable margin.