In the Media

National Ability SA v Tinna Oils & Chemicals Ltd [2009] EWCA Civ 1330; [2009] WLR (D) 361

PUBLISHED December 15, 2009

LIMITATION OF ACTION ? Award, action to enforce ? Enforcement of arbitration award as judgment ? Shipowners awarded payment by arbitrators following dispute with charterers ? Permission given to enforce awards in same manner as judgments ? Limitation period for action to enforce award lapsing ? Order giving permission to enforce set aside ? Whether application to enforce award in same manner as judgment action to enforce judgment debt ? Whether action to enforce award ? Whether statute-barred ? Whether subject to normal six year limitation period ? Arbitration Act 1950, s 26(1) ? Limitation Act 1980, s 7 ? Arbitration Act 1996, s 66

CA: Thomas, Hallett LJJ, Coleridge J: 11 December 2009

An application to enforce an arbitration award in the same manner as a judgment under the procedure set out in s 26 of the Arbitration Act 1950 and s 66 of the Arbitration Act 1996 was subject to the same limitation period of six years under s 7 of the Limitation Act 1980 as an ordinary action on the award.
The Court of Appeal so held when dismissing the appeal of National Ability SA, the owners of the Amazon Reefer, from the decision of Burton J to refuse permission to appeal against his decision to set aside the order of Aikens J [2008] EWHC 2826 (Comm)) who had given the owners permission under s 26 of the Arbitration Act 1950 to enforce the awards made by arbitrators as judgments against the charterers, Tinna Oils & Chemicals Ltd, and to enter judgment in terms of the awards.
The owners argued that an action under s 26 of the 1950 Act was not an action to enforce an award, but was an action to obtain a judgment, and to enforce that judgment.
THOMAS LJ said that more than six years had elapsed since the time when the award should have been paid and therefore, if the normal limitation provision under s 7 of the Limitation Act 1980 applied, the claim was statute-barred. There was a clear distinction between an arbitration award and a judgment. The provisions of s 26 of the 1950 Act and s 66 of the 1996 Act were simply procedural provisions enabling the award made in consensual arbitral proceedings to be enforced. That was quite different from the pronouncement of a judgment by a court where the state through its courts had adjudged money to be due. On first sight, an application under s 26 of the 1950 appeared, as a matter of ordinary English, to be an ?action to enforce an award? within the meaning of s 7 of the 1980 Act. There was good reason for giving the statutory language the ordinary and plain meaning which it had been understood to bear for many years.
Appearances: Peter Irvin (instructed by Stephenson Harwood) for the owners; Steven Gee QC (instructed by Hill Dickinson) for the charterers.
Reported by: Benjamin Urdang, barrister.