Lidl GmbH v Just Fitness Ltd [2010] EWHC 39 (Ch) (15 January 2010)

Lidl GmbH v Just Fitness Ltd [2010] EWHC 39 (Ch) (15 January 2010)

The terms of reference in the arbitration before Mr Corns included the delay issue. There was no agreement reserving the delay issue for later determination. Therefore, Just Fitness Limited is estopped per rem judicatam from raising the delay issue in a subsequent arbitration, and the second arbitrator (Mr Cartwright) lacks jurisdiction to determine it.

Citation
[2010] EWHC 39 (Ch)
Parties
Claimant: LIDL GMBH; First Defendant: Just Fitness Limited; Second Defendant: Bannatyne Fitness Limited
Jurisdiction
England and Wales
Judgment Date
15 January 2010
Procedural Posture
Section 32 Arbitration Act 1996 Application / Judgment on Preliminary Issue of Arbitral Jurisdiction
Outcome
Application granted. Declaration made that the second arbitrator lacks jurisdiction.
Legal Topics
Res Judicata, Arbitral Jurisdiction, Assignment of Lease, Unreasonable Withholding of Consent, Delay in Consent, Terms of Reference in Arbitration
Arbitration Landlord and Tenant Res Judicata Arbitral Jurisdiction Assignment of Lease Unreasonable Withholding of Consent Delay in Consent Terms of Reference in Arbitration

Case Brief

Summary, issues, holding and outcome

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Parties

LIDL GMBH

Claimant

Just Fitness Limited

First Defendant

Bannatyne Fitness Limited

Second Defendant

Procedural Posture

Section 32 Arbitration Act 1996 Application / Judgment on Preliminary Issue of Arbitral Jurisdiction

Legal Issues

  1. 1 Whether the issue of delay in giving consent was within the terms of reference of the first arbitration
  2. 2 Whether the parties agreed to reserve the delay issue for later determination
  3. 3 Whether a second arbitration on the delay issue is barred by res judicata

Ratio Decidendi

The terms of reference in the arbitration before Mr Corns included the delay issue. There was no agreement reserving the delay issue for later determination. Therefore, Just Fitness Limited is estopped per rem judicatam from raising the delay issue in a subsequent arbitration, and the second arbitrator (Mr Cartwright) lacks jurisdiction to determine it.

Court Disposition

Application granted. Declaration made that the second arbitrator lacks jurisdiction.

Orders

  • Declaration that Mr Cartwright does not have jurisdiction to determine the dispute referred to him by Just Fitness Limited.