Oldham v QBE Insurance (Europe) Ltd, Court of Appeal - Commercial Court, December 01, 2017, [2017] EWHC 3045 (Comm)

Resolution Date:December 01, 2017
Issuing Organization:Commercial Court
Actores:Oldham v QBE Insurance (Europe) Ltd

Case No: CL-2016-000802

Neutral Citation Number: [2017] EWHC 3045 (Comm)






Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Date: 01/12/2017

Before :


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Between :

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Mr Michael Oldham as Litigant in Person

Mr Imran Benson (instructed by DWF LLP) for the Defendant

Hearing dates: 23 November 2017

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JudgmentThe Hon. Mr Justice Popplewell :


  1. The Claimant, Mr Oldham, brings applications under s.68 & s.69 of the Arbitration Act 1996 (``the 1996 Act'') arising out of two awards of Mr Arthur Harverd dated 7 October 2016 (``The Part I Award'') and 4 November 2016 (``The Part II Award'') in favour of the Defendant (``QBE''). Mr Oldham requires and applies for an extension of time in which to make the applications. By an order of 28 June 2017 Knowles J ordered a rolled up hearing of all the substantive and procedural issues.

  2. Mr Oldham is an accountant and licensed insolvency practitioner. He faced proceedings brought by the joint liquidators of MK Airlines Limited arising out of events between June 2008 and March 2009 when he was one of three joint administrators of the company (``the High Court proceedings''). Those proceedings resulted in a judgment against him for a sum in excess of £1million, from which he is currently appealing. The appeal has not yet been determined.

  3. QBE are Mr Oldham's professional indemnity insurers under a policy covering claims made for 12 months at 19 February 2014 (``the Policy''). The Policy was subject to the minimum indemnity requirements (``the Minimum Terms'') of the Institute of Chartered Accountants of England and Wales (``ICAEW''). The Policy provided that the Minimum Terms were to take precedence over the Policy terms in the event of a conflict in which the Minimum Terms were more favourable to the insured.

  4. QBE disputed that the policy responded to Mr Oldham's potential liability in the High Court proceedings and the coverage dispute was referred to arbitration before Mr Harverd. QBE funded Mr Oldham's defence costs in the High Court proceedings pursuant to its obligation to do so under clause C10.2 of the Minimum Terms, pending resolution of the coverage dispute.

  5. In the Part I Award the arbitrator held that Mr Oldham was not covered by the Policy because the claim had been made against him or notified to him prior to inception. There is no challenge to that aspect of the Award.

  6. The current applications involve challenges under s.68 and/or s.69 to three aspects of the Awards.

    (1) Defence costs in the High Court proceedings. In the Part II Award, the arbitrator held that QBE was entitled to reimbursement of these costs which it had funded, quantified at £43,775 inclusive of VAT. This ruling is subject to challenge under s.69 of the 1996 Act on the grounds that as a matter of law QBE has no entitlement under the terms of the Policy to recover such defence costs. There is a challenge in the alternative under s.68 of the 1996 Act on the grounds that the arbitrator did not give Mr Oldham a fair opportunity to address the question of such entitlement.

    (2) The costs of the arbitration. In the Part I Award, the arbitrator ordered Mr Oldham to pay the costs of the arbitration, both the tribunal's costs and QBE's costs. They were not then quantified, and their amount remains to be quantified in a Part III award which has not yet been made, but QBE's claimed costs are £120,685.85. This is the subject of a challenge under s.68 of the Act on the grounds that Mr Oldham was not given a reasonable opportunity to address argument as to why this order should not have been made.

    (3) Payment on account of costs. In the Part II Award the arbitrator ordered Mr Oldham to pay £70,000 on account of costs within 28 days of the Award. This is the subject matter of a challenge under s.68 of the 1996 Act on the grounds that Mr Oldham was not given a reasonable opportunity to address argument in respect of such an order.

    The adjournment application

  7. At the outset of the hearing an application was made by counsel on behalf of Mr Oldham for an adjournment, which I refused for reasons which I briefly summarised. I set them out in this judgment because Mr Oldham has indicated a desire to appeal against such refusal.

  8. The hearing of these arbitration applications was fixed on 7 July 2017 to take place on 23 November 2017 with an estimate of three hours, with half a day's pre-reading. On 22 November 2017, the day before the hearing, Mr Oldham issued an application to adjourn the arbitration applications. This was the first intimation to QBE of his desire to do so. The application was not served on QBE until late in the day on the eve of the hearing. On the morning of the hearing the application was made orally on Mr Oldham's behalf by Mr Van Heck of counsel, who was not instructed in relation to the substantive arbitration applications.

  9. There are a number of powerful factors which weighed against granting an adjournment. It was made very late, after the Court had read into the case and after QBE had incurred the costs of preparation, briefing counsel and submitting a skeleton argument for a hearing which had been fixed for months. Any adjournment would have seriously prejudiced QBE not merely by a delay in disposing of the challenges to the awards but also by the inevitable increased costs, in circumstances where such increased costs might never be recoverable from Mr Oldham because of his avowed impecuniosity. Significant delay would not only prejudice QBE but is inimical to the principle of speedy finality in arbitration which underpins the 1996 Act, especially since the applications had already taken over a year to get to a hearing and included an application to bring them out of time. The disruption caused by an adjournment in terms of the waste of court time and adverse impact on other court users is contrary to the public interest in the proper administration of justice and would involve allotting this case an inappropriate share of court resources in preference to other cases.

  10. There is no good reason for an adjournment. Mr Oldham sought to justify it on the grounds that he could not afford representation. The background is that the arbitration applications were prepared by Lewis Silkin LLP whom Mr Oldham had instructed on 9 December 2016. Lewis Silkin instructed experienced counsel, Ms Dias QC, to advise and assist in drafting the applications and supporting material, which included a detailed skeleton argument setting out the grounds for the relief sought. She continued to be involved at least until June 2017. On 27 October 2017 Lewis Silkin notified Mr Oldham that it was terminating the retainer for cause, as it had previously warned him it would. Mr Oldham did not accept that there was an entitlement to terminate the retainer. Lewis Silkin made an application to come off the record on 2 November 2017, and, having considered the matter on paper in the usual way, I made an order on 9 November under CPR part 42.3 declaring that Lewis Silkin had ceased to act for Mr Oldham. For administrative reasons which were not known to me, and were not the fault of QBE, Mr Oldham was not notified of the application before I made my order. He was made aware of it on 13 November 2017. On 20 November 2017 Mr Oldham issued an application to set aside my order. I ordered service of evidence and heard the application on 22 November 2017 with the benefit of argument from Mr Oldham and counsel for Lewis Silkin. I dismissed the application on the grounds that the evidence established a clear entitlement on the part of Lewis Silkin to terminate the retainer and that they had validly done so.

  11. These events provide no good grounds for an adjournment. Mr Oldham has not provided details of his assets or evidenced an inability to instruct counsel on grounds of impecuniosity. He clearly has some funds, having instructed counsel, Mr Van Heck, to make the application for an adjournment on his behalf. He has known since 27 October 2017 that Lewis Silkin had terminated his retainer and his misguided refusal to accept that fact affords no excuse for leaving it to the last minute to apply for an adjournment. On any view he has had some three weeks to arrange alternative representation.

  12. It was also argued on his behalf that the hearing of these applications should be deferred until after the judgment in his appeal in the High Court proceedings I describe below. He hopes that such a judgment will be favourable to him, and if it is, there is a real prospect of an award of costs in his favour which would enable him to fund representation on these applications. The next step in those proceedings are further submissions which are to be made to Ms Worthington QC sitting as a Deputy High

    Court Judge in the Chancery Division. It is not known when thereafter judgment might be given. It might be subject to further appeal. None of that provides any good reason for the adjournment application being made at the last minute: Mr Oldham has known of the judge's request for further submissions since early October 2017, and known since then that the fixed date for the hearing of his arbitration applications would take place before the resolution of his appeal in the High Court proceedings. An adjournment for that reason would depend upon the unknown contingencies of Mr Oldham succeeding on the appeal; and the unknown contingency of when such an appeal, if successful would occur and be final, so that an adjournment if justified on these grounds would be indefinite (although Mr Oldham sought in the first instance only a delay of three months)...

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