UK Construction and Law

Two and a half months without a notice of arbitration sank an urgent application for court relief under section 44

By Staff Writer  |  23 August 2026

A party facing the withdrawal of hosting and support for its trading platform asked the court for eight mandatory orders in support of an arbitration it had not yet started. The court held that urgency created by a claimant's own delay in appointing an arbitrator is not urgency for the purposes of section 44 of the Arbitration Act 1996.

BLL v STI [2026] EWHC 1678 (TCC) was handed down at 10.30am on 3 July by Mr Justice Constable. The parties are anonymised in the judgment. The applicant issues digital media gift cards through an online platform; the respondent, a Canadian company, provides the software, hosting and support that keep it running. The platform was built in 2016 under a development agreement containing an arbitration clause, and the business that built it changed hands twice before June 2024.

In February 2026 a cyber incident put the platform out of action until 6 March. On 30 March the respondent gave notice that it would stop hosting and supporting the platform from 30 June, and said that some third party licences would end on the same date. On 28 May it offered to extend decommissioning to 31 August. The applicant came to court seeking orders for continued support, preservation of materials, an explanation of the system architecture, a list of third party dependencies, administrator level access and the disclosure of incident logs.

The jurisdictional gate

Section 44(3) allows the court, in a case of urgency, to make such orders as it thinks necessary for preserving evidence or assets. Urgency is part of the jurisdictional threshold, and a contractual right can be an asset for that purpose. Where the case is not urgent, section 44(4) requires the tribunal's permission or the other side's written agreement.

The difficulty was the calendar. The respondent had said in terms on 30 March what it would do, some two and a half months before the hearing, and the applicant had taken no step to appoint an arbitrator in that time. The court found that an arbitrator would probably have been in place by then had the applicant moved promptly. It also noted that the platform would not be switched off until the end of August, another nine or ten weeks away, and that a notice of arbitration issued even then would probably still produce a tribunal able to rule on its own jurisdiction and to grant interim relief.

In short, BLL cannot rely on urgency where the situation (even if it could presently be described as urgent) is self-created and could have been addressed by timely recourse to arbitration.

Mr Justice Constable, sitting in the Technology and Construction Court

Even taken as a discretionary factor rather than a jurisdictional bar, the delay weighed against relief.

Mandatory relief and the merits threshold

The orders sought were mandatory in substance whatever their drafting, which raised the bar. An applicant for a mandatory injunction generally has to satisfy the court to a high degree of assurance that it is right on the merits, and the case has to be unusually strong and clear.

Two questions stood in the way. The first was whether the development agreement still governed the relationship at all, given that completion occurred in 2017, that the business changed hands twice, and that no express novation was alleged. The court observed that a novation need not be of an entire contract, and that one answer might be that the hosting and support obligations were novated while the rest was not, though it made no finding.

The second was the notice period. Until oral argument the applicant had said the agreement could not be terminated unilaterally at all. In argument it accepted that the respondent may terminate on notice, and put the period at twelve months. The court treated that as a concession of substance: it accepts that migration to a new provider is inevitable, which is the very thing the application had been resisting since March.

The orders were refused individually as well. An order to continue providing support was too vague to police, with no service levels, response times, hours or fees specified. An order to produce a written explanation of the system architecture would have required the creation of material rather than its preservation. The preservation order came to no more than the respondent had already offered, and that offer was recorded in the recitals.

The point that travels beyond the software sector is the first one. Parties who have agreed to arbitrate and then find a counterparty pulling the plug should start the reference on a protective basis on the day the notice arrives. Delay does not merely weaken the application to the court. It removes the jurisdiction to make it.