ROSKILL L.J. These two appeals from decisions of Donaldson J. dated April 10, 1979, raise, as the judge said at the outset of his judgment,
[1981] A.C. 909 Page 942
ante, p. 915E-F, questions of great importance relating to the conduct of arbitrations in this country and especially in relation to the conduct of those arbitrations to which section 5 of the Arbitration Act 1979 will not apply. Before us the appeal in Gregg v. Raytheon Ltd. was argued before the appeal in Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation Ltd., though before the judge the cases were apparently heard in the reverse order. I shall call the first appeal “the Raytheon appeal” and the second “the Bremer appeal.” In each action the judge has held that the appellants, who were the defendants in the two actions and the respective claimants in the two arbitrations had been guilty of inordinate and inexcusable delay which had caused such prejudice to the plaintiffs in each of the two actions, who were the respective respondents in the two arbitrations and of course in these appeals, that had the appellants commenced these proceedings in the High Court by way of action instead of by arbitration in accordance with the arbitration clauses in the respective agreements under which the disputes concerned arose, such proceedings would have been dismissed by the High Court for want of prosecution in accordance with the principles laid down in Birkett v. James [1978] A.C. 297 and Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229. The judge summarised those principles in six succinct paragraphs, ante, pp. 916 – 918. Subject to what I say in the next sentences on the question of acquiescence – see paragraph 5 of the judge’s summary – I accept as correct and gratefully adopt the judge’s summary without repetition. Mr. Butler argued that acquiescence was an absolute bar and that once there was acquiescence in delay, the existence of that delay ceased to be relevant. Only further delay is relevant. Since I take the view, as did the judge, that there was no acquiescence in the Bremer case, this point does not arise for decision. But, as at present advised, I think Mr. Butler’s argument is inconsistent with what Salmon L.J. said in Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229, 232.
The question for decision before him was, and in this court is, whether those principles have any application to the conduct of arbitrations in this country. Until the present cases no court has held that they have. But the judge has held, first, that an arbitrator (I include an umpire in that word) has power to dismiss for want of prosecution and to make an award to that effect: ante, p. 921D-F. He has further held, at pp. 482-483, that in such a case the courts have power to intervene and prevent a dilatory claimant in an arbitration from further proceeding with his claim by granting an injunction restraining him from so doing. The judge based this conclusion upon the view that unjustified delay by a claimant struck at the root of an agreement to arbitrate which a respondent might treat as repudiatory conduct and accept as such, thus bringing to an end the agreement to arbitrate, and enabling him to obtain an injunction and also, where appropriate, damages, e.g. for wasted expenditure.
The judge’s first conclusion that an arbitrator had power to dismiss for want of prosecution was contrary to an earlier decision of Bridge J. in Crawford v. A. E. A. Prowting Ltd. [1973] Q.B. 1, where he held that
[1981] A.C. 909 Page 943
there was no such jurisdiction vested in an arbitrator. The argument that the court had power in effect to achieve the same result by an injunction was not and indeed could not have been advanced in that case since the matter came before Bridge J. by way of case stated by an arbitrator who had been invited to dismiss the claimant’s claim in that arbitration for want of prosecution.
Before us Mr. Saville, for the appellants in the Raytheon appeal, argued as almost his last submission that the judge had reached the wrong conclusion upon the facts of that case. Mr. Butler, for the appellants in the Bremer appeal, devoted virtually the whole of his argument to a like submission and was content for the rest to adopt (with one exception) Mr. Saville’s submissions on the other issues so far as relevant to the Bremer appeal. In neither appeal did this court find it necessary to call upon counsel for the respondents to support the judge’s conclusions upon the facts of the case for, notwithstanding the arguments of counsel for each of the appellants, I think the judge’s conclusions upon the facts in each case are quite unassailable. For my part, I would in each case have unhesitatingly reached the same conclusion as did Donaldson J. But even if I had felt any doubt as to the correctness of either or both of his conclusions, which I do not, I would not have been willing to interfere with his exercise of his discretion on a matter of this kind, assuming, of course, he was right in applying to arbitrations the same principle as is now clearly established to apply to actions in the High Court.
It follows that for the first time this court is asked to decide, first, whether arbitrators have power to dismiss for want of prosecution in such circumstances and make an award to that effect, and, secondly, whether or not they have such power, whether the court has power to interfere in such circumstances by injunction. It is convenient to mention at this juncture that since the instant decisions, Lloyd J. in The Splendid Sun [1980] 1 Lloyd’s Rep. 333, granted an injunction restraining claimants in an arbitration from proceeding with their claim. The question whether arbitrators had power to strike out did not arise for decision. The delays in that case were even worse than in the instant cases since the arbitration in question had been begun in 1969 and no steps had been taken thereafter for over eight years. Lloyd J. stated that, as is the fact, until the instant cases no court had granted an injunction such as Donaldson J. granted.
But following Donaldson J.’s decisions Lloyd J. granted such an injunction, resting his decision upon the submission that the delay in question was such as would frustrate the agreement to arbitrate, a submission apparently not advanced before or considered by Donaldson J. As will later emerge, I think Lloyd J. was right to rest his decision upon this foundation rather than upon that enunciated on this branch of the case by Donaldson J. if, which still remains to be considered, the court has any power to interfere by injunction in the circumstances under consideration.
It should be mentioned that neither Mr. Waller nor Mr. Rokison, for the respective respondents, who as the plaintiffs obtained injunctions from
[1981] A.C. 909 Page 944
Donaldson J., found it easy to support that part of the judge’s judgment which held that arbitrators had power to dismiss for want of prosecution and to make an award to that effect. Mr. Waller dealt with this question only towards the end of many submissions, while Mr. Rokison, whose help we had invited in order to make sure that no point favourable to the judge’s view had inadvertently been overlooked, recognised his difficulty in supporting this part of the judgment.
It is strange that if arbitrators have this power it has never been invoked, at any rate in such a way as to obtain a decision of the court upon its existence. The inadequacy of the powers of arbitrators to deal with delays – often deliberate delays – has long been a matter of complaint. Many of the proposals of the powerful committee over which MacKinnon J. presided in 1927 were directed towards strengthening the Arbitration Act 1889 so as to avoid delays which by 1927 were already notorious. Those of the proposals which were ultimately adopted found their place upon the statute book in the Arbitration Act 1934. As recently as 1978 the Commercial Court Committee, over which Donaldson J. himself presided, in a Report on Arbitration (1978) (Cmnd. 7284) bewailed the constant delay and discussed the “favourite ploy” by those seeking delay. Paragraph 57, which bears the rubric “Sanctions in case of delay or failure to comply with the arbitrator’s directions” merits quotation in full:
“A favourite ploy by those who seek delay is to ignore the time table fixed by the arbitrator or to fail to comply with directions for the delivery of a defence or for discovery. Parties to an action in the Commercial Court who adopted similar tactics would receive short shrift, since the Court would strike out the claim or counterclaim or debar the defendant from defending. In cases which fall within section 12 (6) of the 1950 Act, it is possible for parties to obtain an order from the High Court and for that court to apply sanctions in the event of default. However this is not widely known, does not cover all forms of foot-dragging and involves at least two attendances on the High Court – first to obtain an order and further attendances to invoke sanctions. What is required is a power for the High Court to apply sanctions for disobedience of orders made by the arbitrator. This too is a suitable subject for the attention of an Arbitration Rules Committee.”
That report was in part responsible for the passing of the Arbitration Act 1979, including section 5. But in neither the report of MacKinnon J.’s committee nor in this report of the Commercial Court Committee does one find any hint or suggestion that arbitrators have so readily to hand this lethal weapon which the judge in his judicial capacity has held to exist.
On the other hand, it must be said that before Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229 and the other related cases it had not readily occurred to practitioners that this weapon of striking out was available to dispose of personal injury and other actions of seemingly indefinite duration, and perhaps it is not surprising that the possibility of
[1981] A.C. 909 Page 945
using this weapon had not occurred to those engaged in arbitrations rather than litigation. Nonetheless complaints of delays in arbitration have been of as long – or longer – standing as complaints of the law’s delays, and it has at long last in 1979 been thought necessary to deal with this problem by legislation.
In my view, it is necessary to consider the correctness of the judge’s view both as a matter of history and of principle. Until well into the last century the courts looked askance at arbitrations. The procedure was suspect as tending to oust the jurisdiction of the courts, and indeed one finds traces of this attitude in decided cases well into this century notwithstanding the passing, first, of the Common Law Procedure Act 1854 and, secondly, of the Arbitration Act 1889.
As Lord Moulton pointed out in Bristol Corporation v. John Aird & Co. [1913] A.C. 241, 256, it was not until the Common Law Procedure Act 1854 that Parliament gave to the courts the limited power of stay which section 11 of that statute accorded in cases where the parties had agreed that existing or future differences should be referred to arbitration provided, of course, the other conditions in that section were also satisfied. Until then if one of the parties to a submission refused to proceed to arbitration the other was left to a useless remedy in an action for damages: see also in this connection the judgment of this court in In re Smith & Service and Nelson & Sons(1890) 25 Q.B.D. 545, where it was held that the only remedy for unilateral revocation of a submission to arbitration before section 1 of the Arbitration Act 1889 was enacted lay in an action for damages for breach of contract. But the Act of 1854 is singularly silent as to the powers as distinct from the duties of arbitrators – for example, section 15 provided that an arbitrator should, save in circumstances for which the section made provision, make his award within three months of his appointment. Those and other sections of the Act of 1854 dealing with arbitrations were repealed by Schedule 2 to the Arbitration Act 1889. That statute in section 4 re-enacted in a somewhat different form section 11 of the Act of 1854. By section 2 of and Schedule 1 to the Act of 1889 nine provisions respectively lettered a to i were ordered to be implied into submissions to arbitration unless the parties had otherwise provided. The former section 15 found new and extended life in paragraphs c, d and e of that schedule, provisions which were castigated by the MacKinnon Committee as of no practical value: see paragraph 5 of that report. It is to be observed that paragraph f created an implied obligation on parties to give evidence and also discovery, but notwithstanding that provision no sanctions were provided for any failure so to do. Curiously enough, Schedule 1 contained no express power to order pleadings or indeed to allow amendments to pleadings, nor was any power given to arbitrators to order a claimant to give security for costs in cases where in an action a court would order such security to be given.
It is difficult to think that if between 1889 and 1934, when some of the recommendations of the MacKinnon Committee took effect in the Arbitration Act 1934, anyone had been bold enough to assert that an arbitrator had power to dismiss an arbitration for want of prosecution and to make an award to that effect without more ado, such a submission
[1981] A.C. 909 Page 946
would have been favourably received in any court of law. That that is so is supported, I think, by two decisions in this period, especially the second, to neither of which was the judge referred when this matter was before him. In In re Crighton and Law Car and General Insurance Corporation Ltd. [1910] 2 K.B. 738 a Divisional Court which included Scrutton J. held that an arbitrator had both inherent power and also power under paragraph f of Schedule 1 to the Act of 1889 to order pleadings and to allow or to refuse amendments to them. No doubt it was this decision which made it unnecessary for the MacKinnon Committee to recommend that this apparent gap in Schedule 1 be filled by legislation. More important, in In re Unione Stearinerie Lanza and Weiner [1917] 2 K.B. 558, the Divisional Court held that an arbitrator had no power to order security for costs. That court declined to extend Scrutton J.’s reasoning in In re Crighton[1910] 2 K.B. 738 to the length necessary to enable security for costs to be ordered by an arbitrator. Viscount Reading C.J. said, at p. 561:
“I do not think that Scrutton J. meant by those words to imply that an arbitrator under a submission by agreement was in the same position as and had all the powers of a judge. I think he meant that he had power to ascertain the facts, and, under clause (f), power to order points of claim to be delivered, and, that that being so, he must have the power also, sitting as the person to decide the questions, to allow an amendment. I do not think he meant anything more than that.”
This decision led to the recommendation of the MacKinnon Committee that the court, not be it noted arbitrators, should be given power, inter alia, to order security for costs, a provision subsequently enacted in the Act of 1934 and now finding its place in section 12 (6) (a) of the Arbitration Act 1950.
It was faintly suggested that we should overrule the Unione case [1917] 2 K.B. 558. It would be completely wrong for us to do so even if I had any doubts (which I have not) as to its correctness. When a decision has been accepted for over 60 years and its consequences remedied by statute, though not so as to give arbitrators power to order security for costs, it would indeed be strange for the Court of Appeal to hold at this late stage that this latter power had always existed.
I cannot but think that, if the judge had been referred to this decision and in particular to the passage I have just quoted from the judgment of Viscount Reading C.J., he would not have reached the conclusion that he did, namely that parties by their agreement to arbitrate impliedly clothed the arbitration tribunal with jurisdiction to give effect to their rights and remedies to the same extent and in the same manner as a court, subject only to certain well recognised exceptions: see ante, p. 921E-F
The judge relied on the decision of this court in Chandris v. Isbrandtsen-Moller Co. Inc. [1951] 1 K.B. 240 as supporting his view. With great respect, I do not think that that decision goes so far as the judge thought. An arbitrator may award interest on damages in a proper case for the
[1981] A.C. 909 Page 947
reasons given by this court in the Chandris case. But that is not to say, as the judge sought to say, that an arbitrator has in all the circumstances all the powers of the court, subject only to the exceptions which he mentioned. I venture to think that the members of this court who decided the Chandris case would have been surprised to learn that they had impliedly held that an arbitrator had power to dismiss for want of prosecution and had also impliedly reversed the decision in the Unione case [1917] 2 K.B. 558.
So far I have dealt with the question only by considering the history of the relationship between the courts and arbitrators and what I conceive to be the principle which has to be applied in these cases. But we were referred to an ill-reported case: Wilson, Sons & Co. v. Conde d’Eu Railway Co. (1887) 51 J.P. 230. That was a decision of the Divisional Court (Day and Wills JJ.) in which it appears to have been held that an arbitrator, seemingly vested with all the powers of a nisi prius judge, nonetheless had no power to strike out the claims that were before him, but that he must adjudicate upon them: see the brief report of the successful argument of the then Attorney-General and also of the judgment of the court. That decision was before the Act of 1889, but for what it is worth supports the conclusion at which I have independently arrived.
One reason which Bridge J. gave in the Crawford case [1973] Q.B. 1 for holding that there was no power in an arbitrator to dismiss for want of prosecution was what he suggested was the different position of a respondent in an arbitration from that of a defendant in an action. He described the position of a defendant in an action as “relatively privileged,” because such a defendant could sit back, do nothing and then apply to dismiss the action against him for want of prosecution. In the case of an arbitration the judge thought there was an obligation on both parties to enable the matter to be prepared for trial: see Donaldson J. ante, pp. 918 – 920 disagreed with this view, suggesting that save in what he called “look sniff” arbitrations, arbitrations and actions were indistinguishable in principle in their adversarial characteristics.
Mr. Saville submitted that on this issue Donaldson J. was wrong and Bridge J. was right and that arbitrations were inquisitorial rather than adversarial in their character. He relied upon what he claimed to be the duty of an arbitrator to make his award promptly and referred to the penalties for which provision is made in section 13 of the Arbitration Act 1950 for the removal of an arbitrator from office and deprivation of remuneration. I think, with respect, this submission is without foundation. The section is dealing with an arbitrator who will not go forward when everyone wishes him to do so. But an arbitrator who insisted on proceeding against the wishes of the parties and attempted to make an award when they were not ready to proceed might at least in some cases find himself accused of misconduct.
With great respect to any view of Bridge J., I find it difficult to distinguish between litigation and arbitrations on the grounds which he suggested. Both, to my mind, are essentially adversarial. Even in a case where each party has appointed an arbitrator and the arbitrators meet and agree upon their award before appointing an umpire I think the
[1981] A.C. 909 Page 948
proceedings can properly be characterised as adversarial. If the commercial judge tries an action in the Commercial Court, it is by concession an adversarial process. If he is invited and agrees to hear precisely the same dispute as an arbitrator or umpire under section 4 of the Administration of Justice Act 1970, I find it difficult to see how or why the whole character and quality of the proceedings suddenly changes. Indeed an arbitrator or umpire, who in the absence of express agreement that he should do so, attempting to conduct an arbitration along inquisitorial lines might expose himself to criticism and possible removal.
On this point, therefore, I respectfully prefer the reasoning of Donaldson J. to that of Bridge J. I take the view that almost all arbitration proceedings and certainly the instant arbitration proceedings are essentially adversarial in their character. As will appear later in this judgment, I do not think that a respondent in an arbitration is in an in any way different position from a defendant in an action. Neither is under any obligation to stir his adversary into action. The dictum which Donaldson J. quoted, at p. 476, about sleeping dogs seems to me to apply equally to sleeping claimants in an arbitration as to sleeping plaintiffs in an action.
If Donaldson J.’s view that arbitrators do, with certain exceptions, possess all the powers of a court, were right, one wonders why the express powers listed in section 12 (6) of the Act of 1950 were necessary, since an arbitrator would already have possessed the greater number of these powers pursuant to some inherent powers vested in him.
In support of the Raytheon appeal Mr. Saville advanced two further arguments, neither of which, he frankly admitted, had been advanced by counsel appearing for the claimants in that case before the judge.
The first was that even if the criticism of the first part of the judge’s judgment were well-founded, his conclusion could be supported on the ground that the position was different in the case of what Mr. Saville called an “institutional” arbitration, by which phrase I understood him to mean an arbitration conducted in accordance with the rules of and under the supervision of some organisation of arbitration such as, in the Raytheon appeal, the International Chamber of Commerce (“I.C.C.”), or perhaps the Institute of Arbitrators in this country. The second was that even if the three arbitrators appointed by the parties under the I.C.C. rules had no jurisdiction to dismiss for want of prosecution, nonetheless under those rules the respondents’ remedy was to apply to the I.C.C. Court of Arbitration, a body for which their rules make provision, for an appropriate order which Mr. Saville claimed that court could make under the rules. He relied in this connection on an affidavit by Dr. Eisemann, a former Secretary-General of the Court of Arbitration of the I.C.C. To this affidavit the respondents replied with an affidavit from Dr. Mann, whose experience in the field of international arbitration requires no endorsement from this court. We admitted these affidavits notwithstanding formal objection from Mr. Waller.
The arbitration clause in the contract concerned in the Raytheon appeal, which was dated June 2, 1970, is found in clause 11 of that contract and reads:
[1981] A.C. 909 Page 949
“In the event that any dispute or controversy shall arise between the parties hereto, the same shall be resolved by arbitration in Geneva, Switzerland, under the rules then prevailing of the International Chamber of Commerce. The laws of England and the laws of the State of Delaware shall be deemed equally applicable to this agreement and in the event of conflict between the two bodies of law the arbitrator shall be free to apply whichever of the said laws will in his opinion most equitably secure the results contemplated herein. The decision of the arbitrator(s) shall be final and binding upon both parties and judgment thereon may be entered in any court of competent jurisdiction.”
Thus the originally intended place of arbitration was Geneva. But this was later changed to London by agreement between the parties and with the consent of the I.C.C. It was argued that this change cannot have been intended to import into the agreement to arbitrate all the striking out procedure applicable to English High Court actions. Since I take the view that by English law an arbitrator has no such power, the interesting discussion we had on the extent of the applicability of the lex fori to arbitrations which is elaborated in Dr. Mann’s affidavit and also in an article he wrote “Lex Facit Arbitrum” in a presentation book of essays, Liber Amicorum, requires no further consideration.
But I find it difficult to accept Mr. Saville’s suggested distinction between institutional and non-institutional arbitration, for which he claimed some support in a textbook entitled Handbook of Institutional Arbitration in International Trade (1977). No doubt institutions concerned with furthering arbitration as a means of disposal of disputes seek emancipation from control of the courts of the countries where such arbitrations take place, perhaps in the belief that such freedom facilitates expedition of decision. Dr. Mann’s affidavit shows the limited success of such attempts and this court recently had to consider similar problems in relation to I.C.C. arbitrations in Dalmia Dairy Industries Ltd. v. National Bank of Pakistan [1978] 2 Lloyd’s Rep. 223, to which frequent reference was made during the arguments. For my part, I am unable to accept that there can be any logical distinction between arbitrations of one kind and the other according to whether some label such as “institutional” can be attached. In each case the relevant question is – on what terms and conditions have the parties agreed to go to arbitration? That question must be answered without regard to any attachment of suggested labels.
Ultimately Mr. Saville did not argue that the three named arbitrators had power to dismiss for want of prosecution. But he contended that the respondents had pursued the wrong remedy and that to achieve their objective they should have applied not to the arbitrators nor to the courts of this country, but to the I.C.C. Court of Arbitration. To some extent this submission overlaps with the question whether or not the court has power to grant and, if it has power, should grant an injunction, for clearly if an alternative remedy existed an English court would be less willing to grant a discretionary remedy such as an injunction.
[1981] A.C. 909 Page 950
I therefore turn to the I.C.C. rules. We are concerned with the 1955 edition, which were those in force at the date of the relevant contract. I think it is clear that for the purpose of the present proceedings we must interpret those rules in accordance with English principles of construction. There is no evidence that the law of Delaware is any different from our own. Section B (1) of those rules deals with the Court of Arbitration and arbitrators and articles 6 and 7 set out the method of appointment of and the functions of the Court of Arbitration. Article 13 gives further powers to the Court of Arbitration. Article 26 reads:
“Before completing the award, the arbitrator shall submit the same to the Court of Arbitration. The court may lay down modifications as to its form and, if need be, draw the arbitrator’s attention even to points connected with the merits of the case, but with due regard to the arbitrator’s liberty of decision. No award shall under any circumstances be issued until approved as to its form by the Court of Arbitration.”
Article 31, much relied upon by Mr. Saville, reads:
“In any circumstances not specifically provided for above, the Court of Arbitration and the arbitrator shall act on the basis of these rules and make their best efforts for the award to be enforceable at law.”
In addition I should refer to articles 1, 2, 3 and 4 of the statutes of the Court of Arbitration.
In paragraph 40 of his affidavit Dr. Eisemann claims that I.C.C. arbitrations are more expeditious than others. I do not stop to consider whether this assertion would be universally accepted. Paragraph 37 of his affidavit states:
“If the claimant was merely stalling for time, no extension would be granted; and the claimant would be warned by the I.C.C. Secretariat or the arbitrators on behalf of the Court of Arbitration that unless he remedied his dilatory conduct within a specified time the Court of Arbitration would treat his request for arbitration as withdrawn, settle the fees of the arbitrators and reimburse the deposit paid by the respondents.”
It is true that Dr. Mann does not contradict this statement. Accepting therefore for present purposes that this is what does or may happen in practice, but construing the rules as a matter of English law, I feel bound to say that I see nothing in those rules which justifies such a course of action as a matter of contract. I derive some comfort for this conclusion from an article in the Handbook of Institutional Arbitration in International Trade, to which I have already referred. In a passage dealing with I.C.C. arbitration under the most recent rules (we were told that article 13 of the most recent rules is virtually identical with article 19 of the rules with which we are concerned), the writer says, at p. 24:
“The first of the ‘anti-frustrating’ measures provided by the rules are those which enable the preliminaries to the proceedings to go
[1981] A.C. 909 Page 951
ahead, once certain time limits have been reached. The second is that provided in article 13 where a party fails to cooperate in the definition of the precise limits of the dispute, and of the points on which the arbitrators are to rule. This, obviously, does not mean that there is any default procedure, since no party can ever be deprived of its rights to defend its interest.”
This passage hardly supports Mr. Saville’s submissions or suggests that Dr. Eisemann’s paragraph 37 is justified by the rules, whatever may happen in practice. Moreover, to my mind paragraph 37 suggests something more akin to action of an administrative nature than to action with any contractual force or effect behind it. I am of the clear view, therefore, that the respondents could not have found any satisfactory remedy by application to the Court of Arbitration.
Thus far I have reached these conclusions:
- (1) There is no power in an arbitrator to dismiss an arbitration for want of prosecution. In this I respectfully disagree with Donaldson J. and agree with Bridge J., though for reasons which I fear differ from his.
- (2) Mr. Saville’s submissions regarding the possible distinction between “institutional” and other arbitrations and especially his submission on the I.C.C. rules regarding an application to the Court of Arbitration fail.
- (3) It must follow that unless the court can interfere by injunction, as the judge has held, an aggrieved respondent in an arbitration is without remedy save himself to press the proceedings forward, which as a defendant in an action he would be under no obligation to do and which in an arbitration might well not be in his interest.
Underlying the view of the judge that the court had power to interfere by injunction was the undoubted fact that the relationship between the parties to an arbitration agreement was a contractual one. An agreement to arbitrate might, like any other contract, be broken or become incapable of performance. If the particular breach in question took the form of repudiatory conduct, then there was no difference in principle between conduct evincing an intention not to perform an agreement to arbitrate and such conduct evincing an intention not to perform any other type of contract. Such conduct could be accepted by the innocent party as a repudiation and a claim to rescind would follow coupled with a claim for damages and an injunction where either or both of these were the appropriate remedies. Such an injunction could then be granted in support of the innocent party’s contractual right to cancel.
The judge further took the view that terms could be implied into an agreement to arbitrate as into any other contract. In addition to the implication, which I have for the reasons already given felt unable to accept, that parties to an arbitration impliedly clothe the arbitrators with jurisdiction to give effect to their rights and remedies to the same extent and in the same manner as a court (ante, p. 921), the judge also held, at p. 924, that it was “implicit” in – by which he meant an implied term of – an agreement to arbitrate that each party would use his reasonable endeavours to bring the matter to a speedy conclusion. In the light of the judge’s findings of fact, he held that the claimants in each case had
[1981] A.C. 909 Page 952
been guilty of repudiatory conduct by failing to proceed with reasonable despatch, repudiatory conduct which each of the respondents was entitled to accept as bringing the agreement to arbitrate to an end.
Mr. Saville was quick to attack the implied term theory both in principle and in its application to the facts of these cases. In principle, he said, there was no need to imply any such term as being both reasonable and necessary in order to make the agreement to arbitrate work. The Arbitration Act 1950, like its predecessors, in the absence of any contrary agreement, imported by statute certain implied terms into a submission to arbitration, for example, section 12 (1). There was, therefore, no need in order to make the agreement to arbitrate work to imply any other terms and no justification for so doing. Moreover, whereas in the Raytheon appeal the complaint was of delay in giving discovery, the respondents had ready to hand a statutory remedy by application to the High Court under section 12 (6) (b), a submission much relied upon by Mr. Saville in his argument on the facts that the respondents were responsible for much, if not all, of the delay by failing to pursue their statutory rights under that paragraph, as indeed they had indicated in correspondence at one time that they intended to do.
Mr. Saville also contended that the judge’s implied term imposed an equal obligation on both parties to proceed with due diligence. Whatever might be said against the claimants in this connection, the respondents had equally done nothing and therefore were equally in breach of their obligation vis-à-vis the claimants, as the claimants were to the respondents, if the judge’s implied term were correctly imported into the agreement to arbitrate. Mr. Saville further argued that if a respondent in an arbitration did nothing it was for the arbitration tribunal itself to get the arbitration moving and that if a respondent did nothing to galvanise that tribunal into action, the respondent was without more ado acquiescing in the delay.
Mr. Butler, however, did not adopt this part of Mr. Saville’s argument, contenting himself with the submission that there was no duty on either party or on the arbitration tribunal to move an arbitration forward. In addition Mr. Saville argued that the respondents’ submission and the judge’s view that an agreement to arbitrate could be repudiated for breach of the implied term which the judge held to exist involved that the innocent party was purporting to revoke his submission to arbitration which, Mr. Saville argued, he was not entitled to do without the leave of the court in view of the provisions of section I of the Arbitration Act 1950. This further argument had not been advanced before the judge and we therefore do not know whether, had he thought this submission well founded, he would have granted the necessary leave under that section. Both respondents before us sought and obtained leave to amend their writs to seek such leave if it should prove necessary. For my part, in the light of the judge’s reasoning I feel little doubt that he would, if he had thought it necessary so to do, have granted leave to revoke.
The submission that a term such as that which the judge held must be implied into this agreement to arbitrate was in the court below based
[1981] A.C. 909 Page 953
upon what in lawyers’ shorthand is known as the “Moorcock principles.” Those principles were recently restated by the majority of this court in Liverpool City Council v. Irwin [1976] Q.B. 319, in terms later unanimously approved by the House of Lords [1977] A.C. 239. Mr. Saville devoted the greater part of his attack upon the implication made by the judge to showing that it was neither reasonable nor necessary to imply such a term so as to make this agreement to arbitrate work. This is, however, not the only basis upon which a court will imply a term into a contract. As their Lordships held in Liverpool City Council v. Irwin, there are certain classes of contract to which a court will, in the absence of agreement to the contrary, attach an implied term as a matter of law. Thus in that case their Lordships held that the particular implied term there in question attached to the contract concerned, which was a contract for the letting of a flat, as a legal incident of that contract: see per Lord Wilberforce at pp. 254-255 and per Lord Edmund-Davies at pp. 266-267. There are plenty of other examples of the operation of this principle in the law of contract. For example, sections 13 and 14 of the Sale of Goods Act 1893, and section 39 of the Marine Insurance Act 1906 attach certain implied conditions to contracts of the particular class with which those two statutes are respectively concerned, and each of those statutory provisions merely reproduces the relevant antecedent common law.
Sale of goods law, landlord and tenant law and marine insurance law are all part of our general law of contract. To each as to other types of contract the law will or may attach certain particular implied terms as legal incidents of the relevant contract. I see no reason in principle why contracts to refer disputes to arbitration should not also be treated as part of our general law of contract, be governed by the same legal principles and have attached to them where appropriate one or more implied terms as incidents of those particular contracts, those implied terms if necessary being in addition to those other implied terms for which the relevant legislation makes statutory provision.
Mr. Saville’s attack upon the implication into the agreement to arbitrate which the judge held to be correct has, to my mind, considerable force. Mr. Waller found difficulty in supporting the judge’s implied term. Adroitly he rested this part of his submission on a different basis. Founding himself on the decision in Universal Cargo Carriers Corporation v. Citati [1957] 2 Q.B. 401, he argued that following the reasoning of the House of Lords in Liverpool City Council v. Irwin [1977] A.C. 239there attached to this agreement to arbitrate and to other similar agreements as a legal incident of such agreements a duty not to be guilty of such delay as would frustrate the whole purpose of the arbitration in question. In the Citati case the delay which was ultimately held to be frustrating delay of a repudiatory character was the charterer’s failure to load the ship within such time as did not wholly destroy the commercial purpose of the adventure so that the shipowner thereupon became entitled to throw up the charterparty by reason of the charterer’s repudiatory conduct.
[1981] A.C. 909 Page 954
By parity of reasoning Mr. Waller argued that a claimant in an arbitration who, like a plaintiff in an action, has the conduct of the case and who is guilty of prejudicial delay of such a kind as would in an action lead to that action being struck out by the court was equally guilty of frustrating delay of a repudiatory character, thus enabling the innocent party, the respondents in the Raytheonappeal, to rescind the agreement to arbitrate.
This is indeed a formidable submission. As I have already said, agreements to arbitrate are but part of the general law of contract. The Citati doctrine [1975] 2 Q.B. 401 is of general application. It is not limited to contracts of particular types. This court recently applied that same principle in Unitramp v. Garnac Grain Co. Inc. [1979] 1 Lloyd’s Rep. 212, a decision against which I understand their Lordships’ House has recently refused leave to appeal.
Mr. Saville sought to meet this argument by submitting that the Arbitration Act 1950 was a complete code and that, therefore, there was no justification for attaching by implication to any agreement to arbitrate any further legal obligations beyond those for which the statute provided, such an agreement to arbitrate was not inefficacious or futile without making the implication, especially as the aggrieved party could always invoke his statutory remedies and in particular in the Raytheon appeal a remedy under section 12 (6) from the court.
The short answer to this submission seems to me to lie in the fact that it presupposes, contrary to my view, that a respondent in an arbitration is under some obligation to galvanise a dilatory claimant into action, e.g. by an appropriate application to the High Court under section 12 (6) of the Act of 1950. In my view, for the reasons already given, a respondent is under no such obligation. He can sit back and wait. If this conclusion be right, I see little or no difficulty in attaching to an agreement to arbitrate as a legal incident of such a contract an implied obligation in point of law upon the claimant who, like a plaintiff in the action, has the conduct of the case not to be guilty of such dilatory conduct in the prosecution of his claim as will defeat the whole purpose of the agreement to arbitrate by making a fair hearing before the arbitration tribunal impossible because of the lapse of time involved. This is merely another way of saying that a claimant must in such circumstances not be guilty of frustrating delay of a repudiatory character and it is difficult to think of a better example of frustrating delay of a repudiatory character than delay of such kind as would in an action cause the High Court to strike out the action in its entirety for want of prosecution.
Thus far I accept the judge’s view that a term can properly be implied into the agreement to arbitrate which reflects what I regard as the obligation of a claimant not to delay the prosecution of his claim. But I venture to think that the correct basis for implying such a term is that which I have just stated rather than that which the judge adopted and that the correct implication is also that just stated rather than that suggested by the judge.
[1981] A.C. 909 Page 955
In this connection it should be mentioned, as Mr. Rokison told us, that the suggestion of implying a term originally emanated from the judge during the hearing of the Bremer action and not from counsel arguing that case. Mr. Rokison frankly admitted to us that he displayed little enthusiasm for the suggestion when the judge first made it and that the judge thereupon appeared to drop the suggestion – we have been shown the relevant extract from the transcript which contains the interchange between the judge and Mr. Rokison on this topic. But during the subsequent hearing of the Raytheon case, the judge seemingly revived the idea and ultimately it has formed the basis of this part of his judgment.
Mr. Saville also argued that before the innocent party can treat delay of a repudiatory character as giving him the right to rescind the contract, he must give the guilty party notice making time of the essence. No doubt in certain classes of contract, for example where an innocent party has allowed a guilty party to think that a specific obligation as to timeous performance will not be insisted upon, such a notice making time of the essence would be required and a failure to comply with that notice established before rescission could successfully be sought for non-compliance. But, in my judgment, the present is not such a case. The whole basis of the reasoning in the Citati case [1957] 2 Q.B 401 is inconsistent with this submission. The guilty party remains under a continuing obligation to prosecute his claim and there will come a time, not always very easy to determine in point of fact, when the innocent party can say to the guilty party “enough and no more” and rescind without giving the guilty party any further locus penitentiae. In my view, therefore, this further submission fails.
As to the submission on section I of the Arbitration Act 1950, the short answer is that the rescission with which we are concerned is of the agreement to arbitrate, and not of the appointment of the arbitrators. It is, however, clear that logically the latter appointments must disappear as an inevitable consequence of the rescission of the agreement to arbitrate. Section 1 is only concerned with revocation of the appointment of an arbitrator and not with an agreement to arbitrate. I do not think the dictum of Denning L.J. in Frota Nacional de Petroleiros v. Skibsaktieselskapet Thorsholm [1957] 1 Lloyd’s Rep. 1, 5 is any authority for the contrary view. That was a case where the arbitration in question was continuing. There was no suggestion in that case of a repudiation of the agreement to arbitrate. But, even if I be wrong in the views I have just expressed and leave is required under section 1, I would unhesitatingly give such leave, as I feel reasonably certain that the judge would have done had this issue been raised before him. Finally, on this branch of the case, Mr. Saville argued that there was no clear acceptance of the repudiation by the respondents for he contended that the writ treated the arbitrators as still having power to strike out and that therefore the declaration sought in the writ affirmed the agreement to arbitrate. I do not think this submission is sound – at best it is certainly highly technical. The writ claims an injunction on the footing that the agreement to arbitrate was not subsisting. The claim for a declaration was really no
[1981] A.C. 909 Page 956
more than a claim for an alternative remedy, namely, striking out by the arbitrators consequently upon the rescission of the agreement to arbitrate.
I now turn to the question whether the court has power to grant an injunction restraining the claimants from proceeding with the arbitrations. I approach this question on the basis that the respondents have established a right to rescind owing to frustrating delay which the respondents have exercised. Mr. Saville argued that before section 5 of the Arbitration Act 1979 was enacted the court had no such power.
It is true that such a power, if it exists, has never, at least in recent times, been exercised to restrain the prosecution of an arbitration in support of a claim that the arbitration agreement has been rescinded by repudiatory conduct of one of the parties to that agreement. But if Mr. Saville’s main submission be right and I am right in disagreeing with the judge’s views that the arbitration tribunal itself has no power to strike out, it follows that there is no power anywhere to prevent a dilatory claimant guilty of frustrating delay from ultimately proceeding with his claim notwithstanding the impossibility of the issues between him and the respondent being fairly tried. This of course gives the claimant a grossly unfair advantage.
Mr. Saville argued that the cases where injunctions had been granted in connection with the prosecution of arbitrations fell into two classes, first, misconduct of the arbitrators and, secondly, where there was a dispute whether a particular party was or was not a party to the agreement to arbitrate. He claimed that the respondents by their submissions were trying to add a third class to these two.
In support of the first part of his suggested dichotomy he relied on a recent unreported decision of this court – Japan Line Ltd. v. Aggeliki Charis Compania Maritima S.A. (The Angelic Grace) [1980] 1 Lloyd’s Rep. 288, 292 where it was stated by Lord Denning M.R. that the High Court had jurisdiction to supervise the conduct of arbitrators in order to make sure that they were not guilty of “real misconduct.” In support of the second part of Mr. Saville’s suggested dichotomy he relied upon the decision in Kitts v. Moore [1895] 1 Q.B. 253, where this court granted an injunction to a plaintiff who sought to impeach an alleged agreement to arbitrate by alleging that he was not bound by it: see per Lindley L.J. at pp. 259-260 and per A. L. Smith L.J. at p. 262.
In the present case it was urged there was no “impeaching” of the agreement to arbitrate since it was admitted that initially each of the respondents had been bound by it. There was no suggestion that either agreement to arbitrate was void or voidable on the ground of fraud or mistake. Mr. Saville relied upon Den of Airlie S.S. Co. Ltd. v. Mitsui & Co. Ltd. (1912) 17 Com.Cas. 116 as illustrating a case where a court would not grant an injunction to restrain a defendant from proceeding with an arbitration, saying that there was in such a case no initial impeaching of the agreement to arbitrate.
In answer to these submissions Mr. Waller demonstrated, as he submitted, the development of the relevant equitable jurisdiction before the passing of the Judicature Act 1873 by taking us through many 19th
[1981] A.C. 909 Page 957
century authorities, not all of which were referred to before the judge. I do not propose to examine all these cases, in some of which injunctions were granted and in others injunctions were refused. I think references to three of the cases only will suffice. First and foremost is Pickering v. Cape Town Railway Co., L.R. 1 Eq. 84, a decision of Page Wood V.-C. later varied by Lord Cranworth L.C. The Pickering case has had a curious history and we are indebted to Mr. Waller and his junior for having traced its history . It was treated in the 7th ed. of Russell on Arbitration as authority for the proposition, at p. 204, that:
“Parties, however, sometimes conduct themselves in such a manner as to induce the Court of Chancery to restrain them from proceeding in a reference.”
The passage and the relevant reference to the Pickering case was however later dropped in subsequent editions of Russell and the case is not mentioned in the current or indeed any recent edition of that work. It is, however, cited in Halsbury’s Laws of England, 4th ed., vol. 24 (1979), para. 1038, as authority for the proposition:
“The court has jurisdiction to interfere in arbitration proceedings on equitable grounds where the parties have by their conduct excluded themselves from the benefit of their contract to arbitrate.”
In Pickering’s case, L.R. 1 Eq. 84 there was a contract between the plaintiff and the defendants for the building of a railway in the former Cape Colony. That contract contained an arbitration clause and a certain Mr. Hawkshaw was appointed what was called “standing referee.” Disputes arose and the defendants then resorted to the Supreme Court of the Cape Colony to eject the plaintiff from the site. Later the defendants sought to insist upon their right to go to arbitration in respect of matters arising from the plaintiff’s ejection from the site. The plaintiff sought and obtained from Page Wood V.-C. an injunction restraining the arbitrator from proceeding to make an award. Page Wood V.-C. stated the position thus, at pp. 87-88:
“We have nothing in this court in the nature of a writ of prohibition authorising the court to proceed against an arbitrator, and the only jurisdiction that exists to stop the proceedings before arbitration is founded upon the conduct of the parties. If, for example, defendants are seeking to enforce certain rights which they conceive they are entitled to exercise under a deed for submission to a reference, and the court should be of opinion that they have debarred themselves from exercising those rights by the course of conduct which they have adopted, there arises an equity, which prevents them from prosecuting proceedings, however they might otherwise be entitled to do so under the particular jurisdiction which is beyond the control of this court.”
Lord Cranworth L.C. subsequently discharged this injunction: L.R. 1 Eq. 89. As I read the very brief report of his judgment, he discharged the injunction because it had, in his opinion, been premature to grant it
[1981] A.C. 909 Page 958
before the relevant facts had been fully ascertained. It is important to note that Lord Cranworth L.C. is reported as having said, at pp. 89-90:
“The Vice-Chancellor might have come to a correct conclusion as to the parties having by their conduct excluded themselves from the benefit of their contract to arbitrate, but his Lordship could not see his way to that conclusion until the cause was heard.”
I do not read this passage as disagreeing with Page Wood V.-C.’s statement of basic principle upon which the Court of Chancery would proceed in granting relief to a plaintiff seeking to restrain a defendant from proceeding with an arbitration under an arbitration clause.
Mr. Saville strongly argued that the Pickering case was no authority for the proposition that the court could or would interfere with an arbitration because owing to delay a fair trial was no longer possible: Pickering was, he said, a case where the agreement to arbitrate had been impeached. He reinforced this submission that Pickering was no authority for the wider proposition by urging that nothing could be more unfair than an arbitrator whose award could be shown to have proceeded on a wrong view either of the facts or the law or both. Yet there was ample authority in such cases that the court would not interfere. If, therefore, before 1979 the case did not come within section 12 (6) of the Act of 1950, no one had power to interfere.
I shall return to this submission later, but it will be convenient next to consider the two other principal cases. In Beddow v. Beddow, 9 Ch.D. 89 Sir George Jessel M.R. enjoined an arbitrator from acting because of his own unfitness. That case on its facts, of course, falls comfortably within Mr. Saville’s first category. But Sir George Jessel M.R. said, at p. 93:
“… it appears to me that the only limit to my power of granting an injunction is whether I can properly do so. For that is what it amounts to. In my opinion, having regard to these two Acts of Parliament, I have unlimited power to grant an injunction in any case where it would be right or just to do so: and what is right or just must be decided, not by the caprice of the judge, but according to sufficient legal reasons or on settled legal principles.”
In the third and last of these cases, North London Railway Co. v. Great Northern Railway Co., 11 Q.B.D. 30, this court refused to grant an injunction where the plaintiff asserted that the arbitrator had no jurisdiction to hear the dispute. The court, after considering the judgment of Sir George Jessel M.R. in Beddow v. Beddow, 9 Ch.D. 89, held that it had no jurisdiction to grant the injunction sought because if there were no jurisdiction in the arbitrator to hear and determine the arbitration there would be no legal injury and no legal right in the plaintiff which he was entitled to protect by injunction: see per Brett L.J. pp. 35 and 36 and Cotton L.J. at pp. 40 and 41. Cotton L.J. pointed out that Beddow v. Beddow proceeded upon the basis that the plaintiff had a legal and equitable right to protect by injunction.
[1981] A.C. 909 Page 959
At the present day the problem to which the North London Railway case, 11 Q.B.D. 30 gave rise could and no doubt would be swiftly solved by an action for a declaration that the arbitrator had no jurisdiction. The North London Railway case clearly troubled the judge: see [1979] 3 W.L.R. 471, 480. I do not think the North London Railway case decides more than, as is indeed clear law, the court will not grant an injunction save in support of some legal or equitable right: see the recent restatement of this principle by Lord Diplock in Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A. [1979] A.C. 210, 256. Lord Diplock in that passage appears to treat this as the ratio decidendi of the North London Railway case. Curiously enough it does not seem to have been argued in that case that the plaintiffs had a legal or equitable right to be protected by injunction against wasted costs in an arbitration in which such costs would be irrecoverable if the arbitrator had no power to determine the dispute. He would indeed be a brave lawyer who, where a problem of this kind arises, advises his clients that they can safely stay away from such an arbitration and risk the arbitrator deciding the issue of jurisdiction against them merely in order to save costs which might prove to he irrecoverable.
There is always a tendency where courts, whether of equity or common law, possess some power whether equitable, at common law or by statute and over a long period of time can be shown to have exercised or refused to exercise that power in widely differing cases to seek to group those cases and to categorise them and then, having drawn up those categories, to limit the exercise of those powers to such cases and to contend that there is no wider power which may be exercised in other cases which do not fall within those categories. With respect, I think this is the basic fallacy which underlies Mr. Saville’s suggested dichotomy. No doubt many of the cases I have referred to and others to which we were referred in argument and which were also referred to by Donaldson J. in his judgment, can be grouped or categorised as Mr. Saville suggests. But to accept that grouping or categorisation is not to say that every future case must fall within such a group or category before such an injunction can be granted. Equity has never proceeded along tramlines. In the instant case, as already stated, the respondents have, in my view, a legal right to rescind the arbitration agreement. They also have a right, whether it be called an equitable right does not matter, to a fair hearing before the arbitration tribunal. The claimants’ conduct has led to their having acquired this legal right to rescind. Their right to a fair hearing cannot now be fulfilled because of the claimants’ conduct.
Why then, when there is no other remedy available, should the court not interfere and protect both those rights by injunction? Without an injunction the claimants can go on with the hearing which ex hypothesi cannot be fair to the respondents.
I think, therefore, the judge was entirely right to grant the injunctions in both these cases. It would, in my judgment, be a lamentable gap in our jurisprudence were claimants in arbitration to be preferred to plaintiffs in litigation, as would be the case if the judge were wrong in
[1981] A.C. 909 Page 960
that they can drag out arbitrations indefinitely, being arbitrations to which the Act of 1979 does not apply, without any penalty being imposed upon them.
That leaves the question of damages. This only arises in the Raytheon appeal. The respondents claim as damages their wasted expenditure and the judge ordered the quantum of such damage to be assessed by a taxing master. Mr. Saville argued that the respondents were not entitled to damages unless they could show that they would have, or at least had stood a good chance of winning the arbitration. I do not think this submission is well founded. Some cases, for example, an action for negligence against solicitors, may require proof of the prospects of success as an essential prerequisite of a successful claim for damages for what would have been gained in the action which the solicitors have negligently failed to bring is the measure of the plaintiff’s loss in his action for negligence. But the question in the Raytheon appeal is: what loss or damage flows naturally and directly from the claimants’ repudiatory conduct? My answer is that the damage which flows naturally and directly from their breach is the wasted expenditure which has been incurred by the respondents to no useful purpose because of the determination of the arbitration by rescission of the agreement to arbitrate and by the injunction. In reaching this conclusion I have not lost sight of the dictum of Lord Macmillan in Heyman v. Darwins Ltd. [1942] A.C. 356, 371 that the remedy for breach of an agreement to arbitrate is enforcement and not damages. That statement, however, must be read in its context and not divorced from it. Lord Macmillan was not intending to override the earlier decisions to which I have already referred which emphasise the contractual character of an agreement to arbitrate, a breach of which can in certain circumstances give rise to a claim for damages. In my judgment, therefore, the respondents in the Raytheon appeal are entitled to damages on the basis determined by the judge.
It remains to mention two other matters for the sake of completeness The first is a submission which Mr. Saville sought to raise for the first time in this court. There were, he correctly pointed out, only three respondents in the Raytheon appeal who were the three plaintiffs in the original action. But when one looks at clause 9 of the agreement between the claimants and the respondents one finds that the indemnity upon which the claimants sought to rely in the arbitration was jointly and severally given by four persons, the fourth being a Mr. Teasdale. Mr. Teasdale was not a plaintiff in the proceedings presently before the court and is not a respondent to this appeal. Therefore, argued Mr. Saville, the respondents’ cause of action was incomplete without Mr. Teasdale being joined either as a plaintiff or as a defendant. This became known as the “Teasdale point.” Mr. Teasdale unfortunately is an undischarged bankrupt. Naturally his trustee in bankruptcy is interested as to any terms upon which leave to join Mr. Teasdale might be granted. Since this was a new point taken for the first time in this court, Mr. Saville could only take it with our leave and we were only prepared to grant such leave on terms which Mr. Saville declined to accept. The Teasdale point, therefore, disappears.
[1981] A.C. 909 Page 961
The second matter was raised by Mr. Butler. He sought to introduce for the first time in this court controversial evidence as to German law on the implication of terms into contracts of which German law is the proper law. Since it seemed to us that it would be impossible to resolve this issue even if it be relevant, as to which I express no opinion, without hearing the expert witnesses cross-examined, we declined to allow the matter to be raised for the first time before us. Clearly, if this were intended to be raised as an issue in these proceedings, the matter ought to have been investigated before Donaldson J. so that he might make his findings of fact upon the disputed questions of German law which would be available for us. We, therefore, declined to allow this matter to be raised.
In the result, for the reasons which I have given, I would dismiss both appeals. I would venture to add this. In the addendum to his judgment Lord Denning M.R. has referred to the position of a respondent who was guilty of inordinate and frustrating delay as were the plaintiffs in the present two cases. I prefer to express no view as to the position which might arise in that event which does not now arise for decision and was not presented in argument before us.