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HOUSE, COURT OF SESSION [2007] CSOH 86 |
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OPINION OF LADY PATON in the cause TOR CORPORATE A.S. Petitioners; against SINOPEC GROUP STAR PETROLEUM CORPORATION
LIMITED and OTHERS Respondents: for Judicial review of a decision of arbiters
appointed under a contract ญญญญญญญญญญญญญญญญญ________________ |
Petitioners: D.E.L. Johnston QC; A.M. Clark, Advocate; Tods Murray LLP
First Respondents: R. S. Keen, Q.C.; McBrearty, Advocate; Simpson & Marwick
Second, Third and Fourth Respondents
(Arbiters): No appearance
29 May 2007
Arbitration governed by UNCITRAL rules: whether judicial review of arbiters' decision
time-barred
[1] In
June 1999, the petitioners entered into a contract with the first respondents,
undertaking to act as managers of a semi-submersible drilling unit owned by the
respondents and known as the Kan Tan IV.
In 2000 the first respondents purported to terminate the contract. The petitioners contested the legality of
that termination. They raised a
commercial action. Eventually, in terms
of Clause 9(a) of the contract, the parties' dispute was referred to
arbitration and the commercial action was sisted. In the debate before me, counsel expressly
agreed that the arbitration was governed by model rules adopted by the United
Nations Commission on International Trade Law (UNCITRAL), in particular the
following:
"31(1) The award shall be made in writing and shall be
signed by the arbitrator or arbitrators.
In arbitral proceedings with more than one arbitrator, the signatures of
the majority of all members of the arbitral tribunal shall suffice, provided
that the reason for any omitted signature is stated ...
34(3) An application for setting aside may not be
made after three months have elapsed from the date on which the party making
that application had received the award ..."
Counsel also agreed that in Scots law, an "application
for setting aside" comprised a petition for judicial review of the arbiters'
award.
[2] After
sundry procedure in the arbitration, the arbiters made an award. That award was initially attached to an
e-mail sent to the petitioners on
[3] The
petitioners wish to challenge the arbiters' award. They took legal advice, and instructed
proceedings for judicial review. They
maintain that they lodged their petition for judicial review with the Petition
Department of the Court of Session on
The Rules of
the Court of Session
[4] The
Rules of the Court of Session provide inter
alia as follows:
"Lodging of processes
4.3
A process shall be lodged in every cause commenced by summons
or petition when -
(a) in the case of a summons,
the summons is presented for signeting;
and
(b) in the case of a petition,
the petition is presented to the Petition Department ...
First order
58.7
On being lodged, the petition shall, without appearing in the
Motion Roll, be presented forthwith to the Lord Ordinary in court or in
chambers for -
(a) an order specifying -
(i) such intimation, service
and advertisement as may be necessary;
(ii) any documents to be
served with the petition;
(iii) a date for the first
hearing, being a date not earlier than seven days after the expiry of the
period specified for intimation and service; or
(b) any interim order;
and, having heard counsel or
other person having a right of audience, the Lord Ordinary may grant such an
order."
Excerpts from
the petitioners' affidavits
[5] What
follows are excerpts from the affidavits lodged by the petitioners:
Affidavit of Claire Baird or
Dickson (court runner for Tods Murray LLP)
"...2. I have no specific recollection of the events
surrounding this matter. Accordingly my
recollection comes from my time recording sheets and my court diary.
3. In my diary I have an entry
on
"PET Tor Corporate for Jud
Rev - lodge petition."
There is a tick next to this
indicating that I completed that task on that date. If the petition had been handed back to me I
would have marked a "X" next to the entry and I would have made an entry on
another date.
4. Moreover in my time recording there is an
entry for 15 August which is in the following terms:
"Had counsel sign petition,
thereafter lodged and checked counsel's availability for motion."
If the petition had been
handed back to me it is likely that the relevant part of my time entry would
have been something like, "tried to lodge petition" and there would have been
an entry on a later date showing that I had lodged the petition unless, of
course, it was dealt with on one of the days when I am not at work.
5. That entry in my time recording means I
arranged for counsel to sign the petition.
The petition was in fact signed by Euan G. Mackenzie who is an advocate
in the same stable (the
6. There
are no more entries in my diary in relation to this matter. That means the petition was not returned to
me for revision and was accepted in the form it was presented on
7. The
next entry in my time recording is on
" Spoke to Christine at Ad
Clerks, put entry in A. Clark's diary and spoke to Pet Dept about the date."
This means that I spoke to
Christine Ferguson, the head clerk of the
8. I
would then have advised Mr Simpson about what I had done and he would have
dealt with the remaining matters ...'
Affidavit of Michael Simpson
(member of Tods Murray LLP at the relevant times)
" ...5. On or around 11 August 2006 I asked my
secretary to engross the petition for lodging and I asked for an Inventory of
Productions to be prepared. I also
prepared a motion to be enrolled for a first order and for service on the
persons mentioned in the schedule for service, those persons being [the first
respondents] and the three arbiters. On
or before
6. On
7. She did
as I asked her. She informed me that the
motion would be heard on
8. The
motion was then heard by Lord Drummond Young on
Affidavit of Gavin McLeod
(petitions manager in the Petition Department, the Court of Session)
"2. ... I
have no recollection of the actual events which took place in August
2006. I process a number of petitions
each day and unless there is something particularly memorable about such a
petition I would have no cause to recall what happened with it.
3. The
process reveals that there is a petition in process together with a motion for
first orders and a subsequent interlocutor granting that motion. The date of enrolment of the motion is stated
to be
4. Generally
in this type of case, once I receive the petition and once I know counsel is
available to move the motion I check the petition to ensure that it is
procedurally valid and I then pass it to the Keeper to arrange the hearing of
the motion. If the motion is granted,
then the date for the first hearing is added later, in consultation with the
Keeper's office, and by reference to the court diary and counsel's diary. I have no involvement in that aspect.
5. I am
aware it is contended that the petition in this case was actually presented on
6. I have
considered what may have happened in August and it seems to me that there
are three possibilities, namely: (i) I
may have seen the petition on 15 August 2006, advised Mrs Dickson
that a hearing would be required, and returned the petition to her while she
arranged a date for the hearing; or (ii)
I may have taken the petition on 15 August 2006 and held it in my pending
tray with a note stating that I was awaiting a date for the hearing of the
motion for first orders; or (iii) I may
have seen it for the first time on 21 August 2006. I am unable to say whether one possibility is
more or less likely than the others. As
far as I am concerned, I have no specific recollection and all three are
equally likely possibilities.
7. I have been asked about the date of the motion. As indicated in paragraph 3, I am happy
to accept Claire Dickson's position that the motion was enrolled on
Opening
submissions for the petitioners
[6] Senior
counsel submitted that there were, in general, no time-limits to applications
for judicial review. However the present
case was governed by the UNCITRAL rules, including Article 34(3). Thus it was accepted that the petitioners'
application for judicial review of the arbiters' award had to be made within
three months of the petitioners' receipt of that award.
[7] Counsel
suggested that there were three points which had to be resolved: First, the date on which the award was
received. The signed copy of the award
was received on
[8] The
second point made by the petitioners was that the petition had been lodged on
[9] The
third point was that the appropriate date when assessing time-bar was the date
of the lodging of the petition (not the date of the first order). That date being
[10] If the
court was satisfied on the basis of affidavits, productions, and submissions,
that the petition was not time-barred, the first respondents' plea of time-bar
should be refused, and the petition allowed to proceed. If the court required further material in
order to determine the issue, the appropriate course was to continue the first
hearing to another day, and (if so minded) to order any relevant matters of
fact not already covered in the affidavits and productions to be dealt with by
affidavit. Reference was made to Rule of
Court 58.9(2)(b)(i) and (vi). The court
could also order oral evidence, if thought necessary. However petitioners' primary position was
that the court had sufficient material.
Submissions
for the first respondents
[11] Senior
counsel for the first respondents confirmed that no answers had been
lodged. Service of the petition had been
accepted recently, and the time-bar point might result in the case going no
further. If the case were to proceed to
a continued first hearing, the first respondents intended to lodge answers.
[12] The
parties had an action in the commercial court.
That action had been sisted pending the arbitration. There had been a lengthy arbitration, and it
was a matter of agreement that the UNCITRAL rules applied to that
arbitration. A final determination in
the arbitration was made in May 2006. An
application was then made by the petitioners to judicially review that
award. Meantime the commercial action had
been reawakened. Hearings had taken
place before Lord Reed on
[13] The
first respondents' position was that the arbiters' award had been received by
the petitioners on
[14] For the
purposes of the present argument only, the first respondents were willing to
accept that the phrase "from the date" in Article 34(3) of the UNCITRAL rules
might mean "after the date". The result
was that if the petition was lodged with the Court of Session on
[15] The
first respondents did not contend that the date of the first order (
[16] No-one
disputed the date-stamp on the petition.
The real issue for the court was whether the court could go behind the
date-stamp at the invitation of the petitioners, who would ask the court to
look at the circumstances and events surrounding the lodging of the
petition. Hence the petitioners'
affidavits, which (it should be noted) revealed that the deponents had no
actual recollection of the events, but were stating what they thought had
happened.
[17] Counsel
then drew attention to the affidavit from Mr McLeod, the manager in the
Petition Department. Mr McLeod set out
three possible explanations for what had occurred in August 2006. The first respondents' position was that
whichever possibility applied, the application for judicial review was out of
time.
[18] Counsel
outlined the procedure which took place when a petition was lodged in the Court
of Session. When a petition was to be
lodged, it had to be registered (effected formerly by manuscript entry in a
book, but now by computer entry in a computerised Petition Register). That registration was the court's
acknowledgement that it had accepted the petition. Three matters were entered: (i) details of the relevant petition or
application; (ii) the date for the first
hearing (which might involve ascertaining the availability of counsel); and (iii) payment of the fee fund dues of
ฃ106. The petition would not be accepted
without payment of the fee fund dues. It
was not usually necessary for the court runner to offer cash, as each
[19] Once
the court was satisfied that a petition had been lodged with the fee fund dues
paid, the ensuing procedure was automatic.
The petitioners were not required to serve the petition in order to
achieve further procedure: the petition
would automatically be placed before a Lord Ordinary in chambers with a motion
for a first order for intimation, service and the fixing of a first
hearing. By contrast, if a petition were
not lodged, nothing would happen.
Counsel submitted that various situations could be envisaged in which a
petition was not lodged: a court runner
could go to the Petition Department, physically leave the petition on the
counter and then (for some reason) leave the department: the petition was not lodged. A court runner could hand the petition to a
member of staff in the Petition Department, explain that it was to be lodged,
but apologise for the fact that the fee fund dues could not be paid: the petition was not lodged. A court runner could agree that the petition
be put in a pending tray while counsel's availability was ascertained: the petition was not lodged. Counsel pointed out that, had the first
respondents telephoned the Petition Department on 17 or
[20] Reference
was then made to Rule of Court 58.7 and to the table showing the level of fee
fund dues (Parliament House Book pages C1201 to 1204). Counsel submitted that the wording of Rule
58.7 was such that lodging could not be effected by simply leaving the petition
on the Petition Department counter, or leaving the petition in a pending tray
in the Petition Department. The phrase
"On being lodged", followed by the various procedural consequences set out in
the rule, meant that a petition was not lodged if the various procedural
consequences did not follow. Reference
was made to the commentary on the Rules of the Court of Session by Sheriff
N.M.P. Morrison Q.C., at paragraph 58.7.1.
[21] Counsel
then referred to authorities. In cases
relating to applications for the disqualification of company directors, the
court had to consider the date on which an application had been made. Secretary
of State for Trade and Industry v
Josolyne, 1990 S.L.T. (
[22] In Secretary of State for Trade and Industry v Campleman, 1999 S.L.T. 787 at page
789F, Lord Johnston referred to Josolyne and
Normand, cit. sup., and agreed that
the date of the application was the date when the petition was presented to the
court, and when the court took cognisance of the fact that there was an
application to its jurisdiction. In Superdrug Stores plc v Network Rail Infrastructure Ltd, 2006
S.C. 365, 2006 S.L.T. 146, the court observed at paragraph [32] that an
application with payment of fee fund dues demonstrated an intention that the
matter should be processed by the court;
otherwise persons presenting writs to court departments would be wasting
their time. But in any event, in the
present case, a key procedural feature was that an automatic process followed
upon the lodging of the petition.
[23] Counsel
referred again to Mr McLeod's affidavit and to the three possibilities set
out in paragraph 6. He submitted that
the court could not go behind the process and the dates recorded therein. If there were to be suggestions of bad faith,
or negligence, on the part of Court of Session staff, specific averments would
be required, and possibly a specific type of remedy. The word "lodged" was not some loose
term. The lodging of a petition was an
action from which certain consequences automatically flowed. By what authority could a court go behind its
own date-stamp and entry in the Petition Register? What would be the implications for other
court processes?
[24] In
conclusion, counsel submitted that it made no difference whether the date of
receipt of the arbiters' award was 15 May or
Submissions
for the petitioners
[25] Senior
counsel for the petitioners confirmed that the only issue currently before the
court was the date on which the petition was lodged. A side-issue (possibly of no significance in
the present case) was the date on which the petitioners received the arbiters'
award. Article 31 of the UNCITRAL rules
defined the award as being "in writing" and "signed". Those were mandatory requirements. Counsel submitted that an e-mail
communication did not fulfil those requirements. Accordingly the date of receipt by the
petitioners was the date when the written and signed version of the award
arrived, namely
[26] In
relation to the lodging of the petition, counsel commented that the first
respondents' argument was in effect that "lodging" required some sort of act on
the part of the court. By contrast, the
petitioners' position was that all that was required was an act by the
petitioners. There was no inference in
the Rules of Court or the authorities that anything had to be done by the
court. Accordingly the inquiry in the
present case ought to focus on what had been done by the petitioners.
[27] It was
clear from the affidavit of Mrs Dickson, read with her time-recording
sheet and diary entries, that she had lodged the petition and enrolled the
motion on
[28] The
question of the date-stamp was a matter of internal court administration. It was not an issue within the petitioners'
knowledge. The petitioners had no
control over a date stamp being applied to the petition. There was the possibility of prejudice to the
petitioners if procedural matters over which they had no control were to govern
the relevant date. While acknowledging
that the Court of Session contained many documents upon which dates had been
stamped, counsel submitted that a date-stamp had no official standing, and was
not conclusive for any purpose, let alone lodging. By contrast, in other public registers, such
as the Register of Titles, or the Register of Company Charges, the date had
authority, often by reason of a specific statutory provision. There was no such provision in relation to
the date-stamp on the petition. There
was no provision stating that the date-stamp was conclusive. Thus, in the light of the other evidence,
notwithstanding the date-stamp, the court should conclude that the petition was
lodged in the Court of Session on
[29] Furthermore,
the date of the enrolment of the relevant motion was
[30] Counsel
then turned to the time-recording sheets lodged in process. The entire time-recording sheet for the
petitioners for the month of August 2006 had been lodged. It was significant that the sheet recorded
that the petition had been "lodged" on
[31] Reference
was made to the affidavit by the Petition Department manager, Mr McLeod. He had no recollection of the actual events
in August 2006. He did not assert
that the date-stamp was conclusive. In
paragraph 5 of his affidavit, he acknowledged that the petitioners contended
that the petition was actually presented on
[32] In relation
to the three possibilities set out by Mr McLeod in paragraph 6 of his
affidavit, counsel for the petitioners confirmed that no other possibility was
contended for by the petitioners. The
first possibility did not accord with Mrs Dickson's records, which did not
indicate any physical return of the petition to her. The second possibility was closer to Mrs Dickson's
records and her records-based recollection.
Accordingly it was possible that the petition had been placed in a
pending tray on
[33] Counsel
referred to the affidavit of the petitioners' solicitor, Mr Simpson. In paragraph 6, Mr Simpson referred to his
court runner's return from court, reporting that the petition had been lodged
and the motion enrolled, but that it was necessary to instruct counsel to move
the motion for the first order. Mr Simpson
had been surprised by this requirement, for a purely formal motion. His recollection was that there were so many
actions between the parties in the Court of Session (in addition to the
arbitration) that the staff in the Petition Department had suggested that the
solicitors should check when their counsel would be available to move the
motion. Mr Simpson accordingly
instructed Mrs Dickson to check counsel's availability and the court's
availability. She was then to arrange
for counsel to appear on a suitable date to move the motion for a first order.
[34] In
answer to a direct question from the court, counsel acknowledged that the
petitioners had been unaware at that time of the three month time-bar period
running in terms of Article 34(3) of the UNCITRAL rules. But in any event, Mr Simpson had been
specifically advised on
[35] Two
authorities not referred to by the first respondents were Burgh of Millport, petitioners, 1974 S.L.T. (Notes) 23, and Ritchie v Dickie, 1999 S.C.L.R. 939. Burgh of Millport, petitioners,
concerned section 13 of the Bankruptcy (
"petitions for
sequestration, presented without the concurrence of the debtor ... shall be
competent only within four months of the date of the debtor's notour
bankruptcy".
In that case, the petition was lodged in the Petition
Department on a date prior to the expiry of the four months. However the first deliverance was not
pronounced until a date outwith the four month period. Lord Keith held that the competency of the
petition was to be judged by the date of the lodging of the petition within the
Petition Department, and observed:
"The petitioner has at that
stage brought the petition into court, and it is not within his control
precisely when it is placed before the Lord Ordinary. It would be unreasonable and inconvenient to
hold that a petition which has been lodged in due time is incompetent because
circumstances internal to the court prevent it being brought before the Lord
Ordinary for a few days, and I can find nothing in the language of the Act of
1913 to compel this result."
Counsel submitted that similarly, in the present case, the only issue for the court was the
date when the petitioners brought the petition into court. That was all that the petitioners could
do: the court's machinery thereafter was
outwith the petitioners' control. It
would be unreasonable and inconvenient to hold that petitioners who had
timeously presented a petition and done everything they could to meet the
deadline were out of time because of the court's machinery which was outwith
their control. There was no reason why
the word "lodged" should be construed as meaning not only the presentation of
the petition, but also the acceptance and processing of the petition by the
Petition Department. There were no words
in the Rules of Court making such a construction necessary, and it would be
unreasonable and inconvenient for petitioners if such a construction were to be
adopted. The critical question was
whether the petition was presented on time:
cf. Ritchie v Dickie, 1999 S.C.L.R. 939, at pages
941E to 943E. The Rules of Court did not
connote any act on the part of staff in the Petition Department. Although Burgh
of Millport, petitioners, dealt with a different statutory provision, the ratio was entirely in point, namely that
once the petition was placed in the hands of staff in the Petition Department,
the case was in court. Counsel
submitted that, in the present case, the petition was "lodged" when it had been
discussed and then physically left with the staff in the Petition
Department. The petition did not require
the application of a date-stamp in order to be lodged. The first respondents had not pointed to any
authority or rule justifying the proposition that a date-stamp or other
procedural step was necessary for lodging:
that was simply an assertion on their part.
[36] In
relation to the authorities cited by the first respondents, Secretary of State for Trade and Industry v Josolyne, 1990 S.L.T. (Sh. Ct.) 48 was
supportive of the petitioners' contention, namely that an application to the
court (by way of lodging a petition) was an act of the petitioner. The petition had been presented to the Petition
Department (and therefore lodged) on
"... Under [petition]
procedure the petition is lodged in court and then in terms of Rule of Court
195 the case will automatically be put before a Lord Ordinary in order that a
first order may be pronounced. From the moment
the petition is lodged the rest of the procedure follows automatically ... In my
opinion, there can be no doubt whatever that under the ordinary meaning of
words "an application to the court" must be the date upon which the petition is
lodged in court ..."
Counsel adopted Lord Sutherland's dicta. The word "lodged"
plainly referred to the positive act carried out by the petitioner. The word did not connote anything done by an
officer of the court.
[37] In
relation to Secretary of State for Trade
and Industry v Campleman, 1999
S.L.T. 787, counsel submitted that whether the requirement was the presenting
or the lodging of a petition, that requirement had been met on 15 August
2006. Unlike a summons in an ordinary
action (which required to be served on the defender) nothing further had to be
done in relation to the petition.
[38] When
asked to comment on the first respondents' examples of a petition being
physically within the Petition Department yet not "lodged", counsel made the
following submissions:
(i) Court runner physically leaving the petition on the
counter and for some reason departing: Counsel accepted that it was
necessary for the court runner to draw the attention of the Petition Department
staff to the petition: but that was all
that was necessary.
(ii) Court runner handing over the petition but without
payment of the fee fund dues: Counsel accepted that the
lodging of the petition entailed the payment of the fee fund dues: but the contingency suggested would not arise
in the present case, as the petitioners' agents had the requisite account which
could be debited with the appropriate sum (ฃ106). The contingency might arise in the case of a
party litigant without the necessary account or money: but that was not the case here.
(iii) Court runner agreeing that the petition should be put
in the pending tray to await dates of counsel's availability: Counsel pointed out that in such a situation, the
petition would not automatically come before a Lord Ordinary, but in the
present case it was a known fact that the petition did come before a Lord
Ordinary.
[39] When
asked about date-stamps in connection with other processes in the Court of
Session, for example a date-stamp purporting to show the date on which a tender
was lodged or withdrawn, counsel accepted that dates might be critical in
certain cases, but submitted that there was no authority stating that the court
was bound by the date-stamp. If there
was evidence contradicting the date-stamp, the latter was not conclusive. Omnia
rite acta esse praesumuntur was merely a presumption, a starting-point,
which could be rebutted by evidence.
Counsel submitted that all the other evidence indicated that the
petition had been presented on
[40] In
relation to the three possibilities set out by Mr McLeod in paragraph 6 of
his affidavit, counsel submitted that the second possibility (the petition
being placed in a pending tray awaiting a date for a hearing of the motion for
a first order) clearly satisfied Article 34(3).
The petition had been physically left with a member of court staff in
the Petition Department. What happened
to the petition thereafter was for the Petition Department, not the
petitioners. The third possibility (that
Mr McLeod saw the petition for the first time on 21 August 2006) did
not permit any concluded view to be formed:
it was not clear whether the petition had (or had not) been in the
Petition Department on 15 August 2006, or whether the petition had been
present in the department on 15 August 2006 but had been dealt with by
someone other than Mr McLeod. So
far as the first possibility was concerned (the petition being returned to Mrs Dickson
while she arranged a date for a hearing), counsel accepted that it was
difficult to form a clear view. However
if Mrs Dickson's evidence about presenting the petition on 15 August
2006 was accepted, then Rule of Court 58.7 had been complied with, and the
petition had been "lodged" although it may then have been returned to her.
[41] Counsel
then referred to Superdrug Stores plc v Network Rail Infrastructure Ltd, 2006
S.C. 365, 2006 S.L.T. 146, paragraph [32].
In the present case, the evidence demonstrated that a petition had been
presented on
[42] Counsel
then made several concluding points:
(i) The letter of instruction to counsel dated
(ii) All the evidence (the documentary productions and
the affidavits) were entirely consistent with the petition being lodged on
(iii) In relation to the position adopted Mr McLeod,
the manager in the Petition Department, counsel submitted that it was somewhat
novel for Mr Keen Q.C. to attempt to introduce new evidence verbally, at
the bar (see paragraph [44] below) without supporting affidavits or
productions. It was questionable whether
Mr Keen's additional information should be taken into account. In any event, Mr McLeod's reported
preference for the phrase "the motion was presented" rather than "the motion
was enrolled" was not significant. The
ordinary practice when lodging a petition was to lodge all parts of the process
along with the petition, including the Motion Sheet. Thus it was irrelevant whether it was said
that the motion was "presented" or whether it was "enrolled". Reference was made to Rule of Court 23.2
(enrolment of motions). Presented, lodged,
and enrolled, each referred to the same event, which had occurred on
[43] Counsel
concluded by submitting that the evidence was clear and consistent. It all pointed to
Final
submissions for the first respondents
[44] Just
before an adjournment, senior counsel for the first respondents reminded the
court that the petitioners' affidavits had been received on the previous day at
After the adjournment, and following the final
submissions for the petitioners (noted in paragraphs [42] and [43] above)
senior counsel for the first respondents made some final points.
[45] Reverting
to the question of the date on which the arbiters' decision was received, the
first respondents' position was that the decision had been received on
[46] Mr Johnston
Q.C. had emphasised that it was an intrinsic part of an application for
judicial review to apply for a first order.
Counsel for the first respondents agreed: but it could only be an intrinsic part of
what one had to do if it followed that one achieved a first order by virtue of
the actions taken. If someone did
something which would not lead to a first order, it followed that the person
had not applied for judicial review.
That position was borne out by the express terms of Rule of Court 58.7
(quoted in paragraph [4] above). If
someone did what was envisaged by the rule, there would inevitably be a first
order, unless the petition were to be dismissed as irrelevant or incompetent by
the Lord Ordinary at the early stage of the hearing in chambers for a first
order. While the petitioners contended
that "presenting" a petition was the same as "lodging" a petition, it was a
fact that a petition presented without the fee fund dues would not be
lodged; and a petition presented without
an accompanying process would not be lodged.
A petition could easily be "presented" to the Petition Department who
might refuse to take it, because there was something wrong with it. Reference was made to Rules of Court 4.3 and
58.7. Just because a petition was
presented did not mean that it had been lodged.
One required the full process;
the fee fund dues; and the date
for the hearing for the first order (which might entail checking the
availability of counsel and the Vacation Judge). It was clear from the evidence that the date
of counsel's availability was not given to the Petition Department on
[47] Counsel
for the first respondents agreed that there was no particular magic about the
date-stamp. But it was the court's
public acknowledgement of the date on which it had received the petition. It was the court's public acknowledgement of
the petition being lodged. If a petition
were rejected because it was not accompanied by a process, then it would not be
stamped.
[48] Ultimately,
counsel accepted that the petitioners' agents may well have taken certain steps
with a view to lodging the petition on
[49] In
conclusion, counsel submitted that there was no convincing basis for the court
to go behind the court record. There was
no convincing evidence that, whatever may have been presented on 15 August,
steps were actually taken by the agents to ensure that the petition was lodged
on 15 August. The petition had not
been lodged on that date; it was
time-barred; accordingly, the petition
should be dismissed.
Discussion
The making of an application
for setting aside the arbiters' decision
[50] Article
34(3) of the UNCITRAL rules provides that an "application for setting aside may
not be made after three months have elapsed from the date on which the party
making that application has received the award". Counsel agreed that in Scots law the
application is made by way of a petition for judicial review. Their dispute concerns the date on which the
petitioners' application was made.
[51] Counsel
did not refer to any provision or definition in the UNCITRAL rules which would
assist in ascertaining at what stage in Scottish judicial review procedure an
application for setting aside the arbiters' award might be regarded as
"made". Nor were counsel able to cite
any precedent directly in point.
[52] Counsel
did however refer to helpful decisions made in other contexts. For example, in a case concerning an
application to the court for disqualification of a company director (Secretary of State for Trade and Industry v Normand, 1994 S.L.T. 1249) Lord
Sutherland emphasised the automatic procedural consequences following upon the
lodging of a petition in the Court of Session, thus giving some support to the
first respondents' contention that a possible way of testing whether a petition
has (or has not) been lodged is to ascertain whether and when such automatic
procedural consequences in fact occurred.
At page 1251D-F, Lord Sutherland stated:
"There is no doubt that in
an ordinary action the date of commencement of the action is the date of citation
of the defender. In an ordinary action,
however, the court is not involved until such time as the summons is lodged for
calling. That being so, the action
cannot be commenced by some unilateral action on the part of the pursuer where
no formal intimation has been made to the defender and where the court has not
been involved. The position, however, is
different in petition procedure. Under
that procedure the petition is lodged in court and then in terms of Rule of
Court 195 the case will automatically be put before a Lord Ordinary in order
that a first order may be pronounced.
From the moment the petition is lodged the rest of the procedure follows
automatically. I therefore find myself
in complete agreement with Sheriff Principal Ireland [in Secretary of State for Trade and Industry v Josolyne, 1990 S.L.T. (Sh. Ct.) 48] when he says that the order
for service and the service on the respondent are merely events which are
consequential on an application which has already been made. Section 7(2) [of the Company Directors
Disqualification Act 1986] is concerned, not with the convening of a respondent
into the process, nor with the commencement of an action as that is understood
in ordinary procedure. What section 7(2)
is concerned with is an application to the court and it is the date of that
application that is relevant. In my
opinion, there can be no doubt whatever that under the ordinary meaning of
words "an application to the court" must be the date upon which the petition is
lodged in court ..."
Lord Johnston agreed with that approach in a
subsequent company director disqualification case, Secretary of State for Trade and Industry v Campleman, 1999 S.L.T. 787.
[53] In a
decision concerning a bankruptcy petition, also reported in 1999, namely Ritchie v Dickie, 1999 S.C.L.R. 939, Lord Bonomy was concerned with section
16(4) of the Bankruptcy (Scotland) Act 1985, which provided inter alia that "a petition under this
section may be presented ... within ten weeks after the date of sequestration
...". At page 943E, he concluded:
"On the basis therefore of
authority, common sense and the ordinary meaning of words, I consider this
petition was 'presented' when it was lodged in the petition department. The petition is accordingly timeously presented
for the purpose of seeking recall of the sequestration on a ground which
requires presentation within ten weeks of the sequestration."
[54] Against
the background of those decisions (admittedly made in different contexts and in
relation to differently-worded provisions), I turn to consider Article 34(3) of
the UNCITRAL rules, the terms of the Rules of the Court of Session, and the
parties' respective contentions.
[55] In
terms of Article 34(3), an application to set aside the arbiters' award must be
"made" within the three month period.
Article 34(3) does not provide for an application being attempted, or
about to be made, or put in train, prior to the expiry of the three month
period: the application must be "made".
[56] In my
view, on a proper construction of Rule of Court 58.7 (quoted in paragraph [4]
above) the automatic procedural consequences referred to by Lord Sutherland in Secretary of State for Trade and Industry
v Normand cit. sup., will occur only
upon the petition being "lodged". Only
when the petition has been lodged is the Court of Session (the reviewing body)
engaged in processing and dealing with the application. Only when the petition has been lodged will
anything be done by the reviewing body (for example, the placing of the
petition forthwith before a Lord Ordinary for a hearing for a first
order). Accordingly the question in
issue in this case is whether and on what date the petition was lodged.
[57] The
petitioners' argument in effect amounted to a contention that a petition is
lodged if it is brought to the Petition Department counter, the attention of
the Petition Department staff is drawn to it, some discussion takes place about
it (for example, explaining that the availability of counsel to appear at the
motion for a first order will have to be ascertained), and the petition is then
put to one side, "on hold", whether in a pending tray or elsewhere in the
department, until the unresolved matter is resolved. The petitioners do not accept that any
processing of the petition by the Petition Department staff is required for the
petition to be lodged. In the days
following the petition being left in the department, the staff might take
certain internal, administrative, steps (such as debiting the agents' account
with fee fund dues, registering the petition on the computerised register,
date-stamping the petition, permitting the accompanying motion to be enrolled,
and putting the petition before a Lord Ordinary in chambers for a hearing for a
first order): but the petitioners submit
that these are steps taken at the will or convenience of the staff, steps
beyond the control of counsel, solicitors or court runners, and it would be
"unreasonable and inconvenient" in the words of Lord Keith in Burgh of Millport, petitioners, 1974
S.L.T. (Notes) 23, for such court-users to be prejudiced by "circumstances
internal to the court".
[58] By
contrast, the first respondents submit that a petition is not lodged during an
initial exchange such as that described above.
The petition is only lodged when accepted and processed by the Petition
Department staff such that the following procedures do in fact happen as a
consequence, namely: debiting of the fee fund dues; registration in the Petition Register; date-stamping the petition; the enrolment of a motion for a hearing for a
first order; and the placing of the
petition "forthwith" before a Lord Ordinary (usually in chambers) for the
motion for the first order.
[59] In my
view, the first respondents' submissions are to be preferred, for the following
reasons:
[60] It is
often necessary to be able to ascertain precisely when a document was formally
lodged in the Court of Session. Such
information may be important for many reasons:
for example to establish whether a Minute of Acceptance of Tender was
lodged prior to the withdrawal of the Minute of Tender; or to demonstrate whether a time-bar has been
interrupted; or to prove on what date a significant time-period began to
run. There is therefore a need for
clarity and certainty. Clarity and
certainty would not be achieved by defining the lodging of a petition in the
way contended for by counsel for the petitioners. Adminicles of evidence would have to be
gathered, memories searched and precognitions or affidavits obtained, and
possibly a court ruling sought as to whether and if so when a document might be
regarded as having been lodged. I am
unable to accept that the Rules of the Court of Session, properly construed,
either intend or permit such an approach.
Thus I am not persuaded that a petition might be regarded as lodged
where, for example:
- A petition is presented at the Petition Department counter, but is
for some reason rejected by staff (for example, as being in unacceptable
form; or as being unaccompanied by
a process), and is handed back to the agents;
- A petition is presented at the counter and is (after discussion)
placed by the Court of Session staff in a pending tray to await some event
such as information from the agents about the availability of their
counsel, or payment of fee fund dues, or some other matter;
- A petition is presented at the counter, and is simply not dealt
with, but is left lying unattended to.
In my view therefore a petition cannot be deemed to be
lodged until it has been accepted by the court staff and put into the court system
such that it begins its journey through Court of Session procedure (cf. the
circumstances in Burgh of Millport,
petitioners, 1974 S.L.T. (Notes) 23).
Rules such as Rule 58.7 envisage an acceptance of the petition by staff
and a processing of the application embodied in the petition, including the
registering of the petition in the Petition Register and the placing of the
petition "forthwith" before a Lord Ordinary for the hearing for a first
order: cf. the Commentary on the Rules
of the Court of Session by Sheriff N.M.P. Morrison paragraph 58.7.1. Rule 4.3(b), quoted in paragraph [4] above,
does not in my view assist the petitioners, as the rule provides that a process
must be lodged when the petition is presented;
the rule does not define what is required for the lodging of the
petition itself.
[61] Furthermore,
if the petitioners' submissions were to be accepted, a petition such as that in
the present case could, in theory, be physically presented to the Petition
Department and discussed with the department's staff, but because some problem
had been identified or further information was required, put to one side on the
counter (whether in a pending tray or not) and be left for some considerable
time while the problem was tackled and possibly ultimately resolved. To suggest that such a situation amounts to
"lodging" a petition so that the petition is effectively within the court
machinery is unrealistic and impractical.
As was pointed out by senior counsel for the first respondents, if
someone were to make an inquiry at that stage as to whether there was any
application or petition seeking review of the relevant matter, a member of the
Petition Department staff would check the court system, in particular the
computerised Petition Register, and advise in the negative. By contrast, in the circumstances outlined in
Burgh of Millport, petitioners, cit.
sup., such a check would have produced a positive response. Even if a member of staff were sufficiently
omniscient to know about the petition lying in the pending tray, awaiting
attention after the resolution of the problem or the obtaining of the
information, that member of staff would in all likelihood advise the inquirer
that a petition was about to be lodged, or was expected to be lodged. Moreover, in such circumstances the Petition
Department staff could not comply with Rule 58.7 in that they would be unable
to arrange that the petition (which had not yet been registered or processed in
any way) be placed "forthwith" before a Lord Ordinary for a hearing for a first
order: thus the automatic procedural
consequences of a petition having been lodged (an application made), all as
described by Lord Sutherland in Secretary
of State for Trade and Industry v
Normand, cit. sup., would not be triggered.
The circumstances in the
present case
[62] In my
opinion, two undisputed facts form the starting-point in the present case: first, the Court of Session date-stamp
appearing on the petition is
[63] That is
not to say that the date-stamp and computer entry are necessarily conclusive
evidence of the correct date of the lodging of the petition. I accept that a party may be able to lead
evidence which rebuts the presumption omnia
rite acta esse. For example, a party
may be able to prove that the Petition Department staff were for some reason,
on a particular day, working under a misapprehension as to the correct date,
and that the date-stamp and computer entry reflected their error, and did not
correctly record the day on which the court staff accepted and processed the
petition. However in this case, the
evidence produced by the petitioners, far from overcoming the presumption
raised by the date-stamp and computer entry, in my view tends to support a
sequence of events consistent with the date of lodging the petition being
[64] Mr McLeod
of the Petition Department put forward three possible explanations about what
may have occurred in August 2006.
Counsel for the petitioners did not suggest any other possible
explanation. Accordingly I consider each
of the three in turn.
[65] The
first possible explanation is that Petition Department staff saw the petition
on
[66] Turning
to the third possible explanation, namely that Petition Department staff did
not see the petition until
[67] The
remaining possible explanation (the second explanation) appears to me to be the
only one which is consistent with the sequence of events outlined in the
affidavits and productions. That
sequence of events appears to me to be as follows:
[68] On
"Spoke to Christine at
[Advocates'] Clerks, put entry in [counsel's] diary and spoke to [Petition]
Dept. about the date."
[69] Thus it
appears that negotiations with the Petition Department did indeed begin on
' ... held [the petition] in
[his] pending tray with a note stating that [he] was awaiting a date for the
hearing on the motion for first orders ..."
[70] I have
also concluded, on a balance of probabilities, that Mr McLeod thereafter
waited for information from Mrs Dickson about dates which would suit
counsel. He may then have had to make
arrangements for a suitable judge to be available in the Court of Session on
the appropriate date, as the interlocutor relating to the first order was
ultimately granted, not by the Vacation Judge on general duty, but by a commercial
judge, Lord Drummond Young. On
[71] I would
add that the date of
[72] In the
result, I have not been persuaded by the evidence that the Court of Session's
date-stamp and the first entry in Petition Department register do not properly
reflect the date on which the petition was lodged. On the contrary, I am satisfied on a balance
of probabilities that the petition was lodged on
[73] I have
therefore concluded that the petitioners' application for setting aside the
arbiters' award was made "after three months [had] elapsed from the date on
which [the petitioners] had received the award". In terms of Article 34(3), the petition is
time-barred and should be dismissed.
Decision
[74] For the
reasons given above, I shall dismiss the petition. I reserve meantime the question of expenses.