A. P. Herbert would have loved Bremer Vulkan v. South India Shipping [1981] A.C. 909, H.L., if only because it affords a perfect illustration, of the paradox that, under our judicial system, a party may have six Judges in his favour and three against him, and still lose. The legal significance of Bremer Vulkan of course is—or should be— rather wider. Nevertheless, the Court of Appeal on three occasions since then (The Splendid Sun [1981] Q.B. 694, The Hamah Blumenthal [1982] 3 W.L.R. 49, The Argonaut [1982] The Times June 24) has contrived so to deal with Bremer Vulkan as to render it a freak, and in so doing has treated the House of Lords with something less than the respect it deserves.

At bottom, the issue at stake was this: if parties make an agreement containing an arbitration clause later invoked by one party, what is the legal effect upon the arbitration thus launched of serious delay in the prosecution of that arbitration? For some time before Bremer Vulkan (and despite a lone first instance decision of Bridge, J., Crawford v. Prowting [1973] Q.B. 1), it had been argued that the court had an inherent jurisdiction to dismiss a claim in arbitration for want of prosecution or to grant an injunction restraining a claimant from proceeding with it if guilty of inordinate and inexcusable delay, by analogy with the court’s inherent jurisdiction to strike out an action at law for want of prosecution (as discussed in, e.g., Allen v. McAlpine [1968] 2 Q.B. 229, and Birkett v. James [1978] A.C. 297).

At first instance in Bremer Vulkan Donaldson, J., and in the Court of Appeal Lord Denning, M.R., Roskill and Cumming-Bruce, L.JJ., considered this to be the law, in a case where claims under a contract arose in late 1965 and 1966, and arbitration had been commenced in 1972, but without delivery by the claimants of points of claim until 1976. In April, 1977, the respondents first claimed the injunction sought in the present proceedings to prevent the continuation of this moribund arbitration.

But in the House of Lords, although Lords Fraser and Scarman agreed with the Judges below, Lords Diplock, Edmund-Davies and Russell took the opposite view: