Re Joseph, v Vernon

• Jurisdiction: Antigua and Barbuda
• Judge: Bishop, J.
• Judgment Date: 22 February 1982
• Neutral Citation: AG 1982 HC 5
• Docket Number: No. 53 of 1981
• Court: High Court (Antigua)
• Date: 22 February 1982

High Court

Bishop, J.

No. 53 of 1981

Re: Joseph,

and

Vernon

Appearances:

Mr. Maundy for applicant

Mr. Stevens for respondent

Practice and procedure - Setting aside — Application for order that award made to Joseph in arbitration be set aside on the ground that arbitrator had misconducted himself or proceedings — Application to set aside arbitral award to be made within six weeks of date it was signed and posted — No application for extension of time — Application dismissed with costs.

Bishop, J. :

1 On the 15 ^th June 1981 a motion was filed on behalf of the United Security Life Insurance Company Limited for an order that the award made in an arbitration between Vernon Joseph and the said company by Louis Hippolyte Lockhart, arbitrator, be set aside on the ground that the said arbitrator had misconducted himself or the proceedings. The manner in which he was alleged to have done so was set out in the motion, which was accompanied by an affidavit.

2 At the hearing on the 15 ^th February 1982 I was advised — and it was not disputed — that the motion and affidavit were not served on the solicitor for Vernon Joseph until earlier this month, February 1982.

3 On Saturday 13 ^th February 1982 at 11.25 a.m. the affidavit of Vernon Joseph was filed in answer to that filed in support of the application.

4 Learned counsel Mr. Stevens, for the respondent Vernon Joseph, has submitted at the outset that the application is out of time and ought to be dismissed with costs.

5 In developing his submission, Mr. Stevens pointed out that the Award in the arbitration was signed and published on the 27 ^th February 1981 and was made available to the parties on the same date. He contended that the application to set it aside ought to have been made on or before 15 ^th April 1981, in order to comply with the provisions of Order 59 rule 4 (1)(b) of the Rules of Supreme Court, which, he urged, applied to this motion. Learned counsel pointed out that a minimum of 14 weeks passed before the application to set side the award was made — that is if the 15 ^th June 1981 was regarded as the proper date on which application was made. Counsel urged that the date on which his application was made was really the date on which it was served and not the date on which it was filed, but that which ever date was accepted by the Court, the delay took it outside of the prescribed period of making application.

6 Mr Stevens pointed out that since the Rules of Supreme Court came into force, the Arbitration Act of 1975 became law in Antigua and replaced the law provided by Cap. 7 of the Revised Laws of Antigua. He cited section 40 of the Arbitration Act 1975 and section 14 of the same Act to support his argument that the Rules of Supreme Court applied to the award notwithstanding the fact that section 11(2) of the Arbitration Act mentioned in Rule 4 (1)(b) of Order 59 was no longer part of the law of Antigua, and that until or unless the rules as to time were repealed or replaced, they ought to stand.

7 In dealing with the date on which the application to set aside the award was served on the respondent, Mr. Maundy, counsel for the applicant, urged that if the other side was complaining that it did not have sufficient notice of the application then it was open to him to seek and adjournment.

8 It can be stated at once, that as I understand Mr. Stevens, he was not complaining of short service of the motion — indeed he could not — but rather he was saying that the application to set aside should not be taken to have been properly made until the other side had been put on notice of it through service on him, and further that the circumstances in this case would make the delay even longer and put the applicant in a worse position. So that there was no question of Mr. Stevens complaining or asking for more time to deal with the application. Learned counsel for the Company also expressed the fact that he had never heard that the date of service rather than the date of filing was the effective date.En passant, the question may be asked of Mr. Stevens: what if the date of service is earlier than the date of filing? In this matter I have considered the date on which the application was filed to be the more pertinent date so far as the date of making it is concerned; though it is unnecessary to look at them both to decide the issue.

9 Mr. Maundy also urged that this motion was brought under the Arbitration Act 1975 which by section 40 had repealed Chapter 7 of the Laws of Antigua and that Order 59 rule 4 (1)(b) did not apply to proceedings under the Arbitration Act of 1975 which had clearly repealed section 11 (2) mentioned in that Rule of Supreme Court. Learned counsel argued that the Arbitration Act 1975 made no mention whatever of time within which an application to set aside should be made to the High Court. In answer to my question as to how he would interpret the words (or otherwise(as they appear in Rule 4 1(b), Mr. Maundy answered that these words ought to be read as meaning some other application, similar to one for remitting or for setting aside, such as, for reviewing, the award. He asked this Court to hold that the United Security Life Insurance Company Limited had no statutory limit imposed on...