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FAC 251 and Zecol Ltd v Silver Pagoda Realty Group Ltd

The award in FAC251 Ltd v Silver Pagoda Realty Group Ltd was in respect of a preliminary issue ordered by the arbitrator, Barry Denyer-Green, as to whether an application for arbitration had been made by the last date under the Commercial Rent (Coronavirus) Act 2022. As the arbitrator found on the facts that the application had not been physically received by the Falcon Arbitration Service by the 23rd September 2022, the principal issue was whether there had been a deemed delivery. Although the Applicant relied on the Recorded Delivery Service Act 1962, the deemed delivery provisions of that Act did not apply as the Applicant had not used recorded delivery. The other possibility was the application of section 7 of the Interpretation Act 1978, which provides that where an Act requires or authorises any document to be served by post, then unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary intention is proved, service is deemed effective at the time at which a letter would be delivered in the ordinary course of post. The arbitrator found that the contrary intention was proven, as the application was not physically received within the time limit.

On the Respondent's application for its costs, the arbitrator placed a construction on section 19(7) of the 2022 Act that enabled him to award costs to the Respondent. He decided that the reference to an agreement on costs in section 19(7) was not sufficiently wide as to include an agreement on legal costs, for the purposes of section 61(2) of the Arbitration Act 1996, where the issue was one of competency within the meaning of section 30 of the 1996 Act, and outside the objectives and purposes of the 2022 Act.

Read the decision here.

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