The Supreme Court dismissed Flinter Shipping BV’s appeal against a High Court order lifting a stay of proceedings brought by Grassland Fertilizers. The Court held that section 11 of the Arbitration Act 2010 barred an appeal to it from a determination of a stay application. It did not decide whether the High Court judge had jurisdiction to set aside an earlier judge’s order.
Grassland had agreed to buy 4,000 tonnes of granular urea for US$1.472 million. The cargo was shipped from Turkey to Drogheda in September 2010. Grassland alleged that on arrival it was lumpy and contaminated with grain, plastic and newspapers, leaving it unable to sell the product at the full price. It estimated its loss at about €310,000, though the judgment said that might not be the final figure. Amlin France, which insured the cargo, declined to indemnify Grassland, arguing there had been no damage and no insured loss.
Flinter sought a stay so the dispute with Grassland could proceed to arbitration in London under a charter-party clause. The High Court granted the stay in October 2011. The proceedings against Amlin were unaffected.
After arbitration was initiated, Flinter’s solicitors said the claim was out of time under a one-year limit in the charter party. Grassland then sought to have the stay lifted. Its solicitor said Flinter had not responded to earlier requests to arbitrate and argued it would be manifestly unjust for Flinter to secure a stay and then rely on a time-bar defence. Flinter submitted that the arbitration could proceed and that Grassland could seek an extension from the English court under section 12 of the UK Arbitration Act 1996 if the arbitrators found the claim time-barred.
In July 2013, the High Court lifted the stay, citing the time-bar issue and the circumstances in which it emerged. Flinter appealed. It argued that the mandatory referral rule in Article 8 of the UNCITRAL Model Law allowed a court to refuse referral only if the arbitration agreement was null and void, inoperative or incapable of being performed. Grassland argued that the High Court’s later order was itself a stay determination and therefore could not be appealed under section 11.
The Supreme Court agreed that the 2013 application sought a determination of a stay application: it asked the High Court to vacate the earlier order and lift the stay. Section 11 therefore left the Supreme Court without jurisdiction to hear Flinter’s appeal. The appeal was dismissed. The Court expressly left open the separate question of the High Court judge’s jurisdiction to vacate an order made by another High Court judge.