BLL v STI: The TCC Reaffirms the High Threshold for Interim Relief Under Section 44 of the Arbitration Act 1996
In BLL v STI [2026] EWHC 1678 (TCC), the Technology and Construction Court considered the circumstances in which it may exercise its powers under section 44 of the Arbitration Act 1996 to grant mandatory interim relief in support of arbitration proceedings.
Section 44 enables the courts to make certain interim orders in support of arbitral proceedings where the arbitral tribunal is unable to act effectively. Those powers include, amongst other things, the preservation of evidence or assets and the granting of interim injunctions. However, the jurisdiction is intended to complement, rather than replace, the arbitral process and will generally only be exercised where the statutory requirements are satisfied.
Although the dispute arose from a software development agreement rather than a construction contract, the judgment provides important guidance for parties involved in construction disputes where arbitration clauses are engaged and urgent interim relief is sought.
Background
The claimant, BLL, operated an online platform through which digital media gift cards were issued. In 2016 it entered into a Development Agreement with DT Limited for the development of the platform. That agreement contained an arbitration clause. Following a number of corporate acquisitions, STI ultimately became responsible for providing hosting and technical support services for the platform. In February 2026 the platform suffered a significant cyber incident which rendered it temporarily inoperable. BLL alleged that STI subsequently refused to provide technical information, source code and other materials necessary to investigate the cyber incident and facilitate migration of the platform. STI also gave notice that it intended to terminate its hosting and support services.
Rather than immediately commencing arbitration, BLL sought urgent relief from the High Court pursuant to section 44 of the Arbitration Act 1996. The relief sought was extensive and included mandatory injunctions requiring STI to continue hosting and supporting the platform, preserve project materials, disclose technical documentation and cybersecurity information, renew third-party licences and provide administrative access to the system.
The Court’s Approach to Section 44
The principal issue before the Court was whether it should exercise its powers under section 44 in circumstances where the parties had agreed to resolve disputes through arbitration. Mr Justice Constable emphasised that section 44 exists to support arbitral proceedings where the tribunal is unable to act effectively, rather than providing an alternative forum for determining substantive contractual disputes. The statutory jurisdiction is therefore intended to be exercised sparingly.
Self-Created Urgency
A central issue was whether the application satisfied the statutory requirement of urgency. BLL argued that immediate relief was required because STI intended to terminate its services before an arbitral tribunal could be constituted. The Court rejected that submission. STI had first notified BLL of its intention to terminate its services approximately two and a half months before the application was made. During that period BLL had not commenced arbitration or taken any meaningful steps to appoint an arbitrator. The Court held that any urgency had therefore been substantially created by BLL’s own delay. A party cannot rely upon section 44 where the circumstances giving rise to the alleged urgency could have been avoided by promptly commencing arbitration proceedings.
Mandatory Injunctions and the Merits Threshold
The Court also considered whether the merits of BLL’s case justified the grant of mandatory injunctive relief. It was common ground that the relief sought was mandatory in nature rather than merely prohibitory. The Court reaffirmed the well-established principle that mandatory injunctions require a substantially higher threshold than ordinary interim injunctions. Whilst the ordinary American Cyanamid principles continue to apply, the applicant must demonstrate a high degree of assurance that it will ultimately succeed at trial. The Court observed that mandatory relief will generally only be granted where the applicant’s case is unusually strong and clear.
BLL argued that STI had become bound by the original Development Agreement through implied novation following a series of corporate acquisitions and that the obligations contained within that agreement entitled it to the relief sought. STI denied that it had ever become a party to the Development Agreement and contended that the ongoing relationship was governed by a separate contract for hosting and support services which was terminable on reasonable notice. Although the Court accepted that there were serious issues to be tried concerning the contractual relationship between the parties, it concluded that the evidence fell well short of establishing the high degree of assurance required for mandatory relief. The questions of implied novation, contractual interpretation and the scope of any continuing obligations were all matters properly reserved for determination by an arbitral tribunal.
Respecting the Arbitral Process
The judgment also emphasises the importance of preserving the integrity of the arbitral process. Mr Justice Constable observed that granting the mandatory injunctions sought would have required the Court to reach provisional conclusions on disputed contractual rights which were themselves the very issues to be determined in the arbitration. The closer an application comes to determining matters reserved for the arbitrator, the greater the caution that the Court must exercise before intervening.
Adequacy of Damages
BLL further argued that, unless relief was granted, the termination of the platform would cause catastrophic harm to its business. The Court was not persuaded that damages would be an inadequate remedy. Although interruption to the business would inevitably result in financial loss, those losses were capable of assessment and compensation through an award of damages if BLL ultimately succeeded. The Court also noted that STI had already undertaken to preserve and provide BLL-specific data and materials in its possession, thereby reducing the risk of irremediable prejudice.
Having concluded that the application failed on the issues of urgency, merits and adequacy of damages, the Court refused all of the mandatory injunctions sought.
Key Takeaways
This decision provides several useful reminders for parties involved in construction arbitrations. First, parties seeking urgent relief should commence arbitration without delay, as any failure to do so may undermine subsequent reliance upon section 44. Secondly, mandatory injunctions remain an exceptional remedy requiring an unusually strong case on the merits. Thirdly, the courts will be reluctant to determine substantive contractual issues that fall within the jurisdiction of the arbitral tribunal. Finally, parties should carefully consider whether damages would provide an adequate remedy before seeking mandatory interim relief, as the availability of compensation will often weigh heavily against the grant of an injunction.
How CCC Can Help
Interim relief applications often arise where projects are at risk of significant commercial disruption, assets require preservation, or urgent action is needed before an arbitral tribunal can effectively intervene. Identifying the appropriate procedural route and acting promptly can be critical to protecting a party’s position. At Contract & Construction Consultants, we regularly advise employers, contractors, subcontractors and consultants on dispute resolution strategy, including adjudication and other forms of alternative dispute resolution. Our team has extensive experience advising on contractual rights and obligations and developing robust legal and evidential strategies to protect our clients’ commercial interests throughout the dispute resolution process. Should you require advice regarding arbitration, interim relief, or any other construction law or dispute resolution matter, please do not hesitate to contact our team.
