Norfolk County Council v Blanmar 2 LLP
[2023] EWHC 2120 (TCC)
Kevin Osler v Marlene Osler & Ors
16 May 2024
[2024] EWCA Civ 516
Court of Appeal
A farmer appealed an arbitrator's decision about how much he owed his brother's estate. The judge refused to let him appeal further, and a higher court agreed it didn't have the power to overturn that decision, because of a specific law about appeals from arbitrators (Section 69 of the Arbitration Act). The higher court didn't consider whether the original decision was fair, just whether they could hear the appeal at all.
Key Facts
- •Dispute arose from an arbitration concerning a farming partnership between Kevin and Roger Osler.
- •Roger Osler died in 2019, and the dispute concerns the price payable by Kevin for Roger's share of the partnership under a 1982 partnership agreement.
- •The arbitrator ruled in favor of Roger's estate, deciding that a market value valuation, rather than historical cost, should be used to determine the price.
- •Kevin sought permission to appeal this decision on a point of law under s. 69 of the Arbitration Act 1996, which was initially refused.
- •Kevin's subsequent application to set aside the refusal of permission to appeal was dismissed by HHJ Monty KC.
- •Kevin appealed to the Court of Appeal, seeking permission to appeal HHJ Monty's decision.
Legal Principles
Section 69 of the Arbitration Act 1996 governs appeals on points of law arising from arbitration awards.
Arbitration Act 1996
Leave of the court is required for any appeal from a decision of the court under s.69 of the Act to grant or refuse leave to appeal (s.69(6)).
Arbitration Act 1996, s.69(6)
The Court of Appeal lacks jurisdiction to hear an appeal if the High Court has refused permission to appeal under s.69(6).
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [2001] QB 388
On an application under s.69 of the Act for permission to appeal an arbitration award, the application is either determined on paper or at a hearing; a refusal on paper is final.
HHJ Monty's judgment [2023] EWHC 1270 (Ch)
Outcomes
The Court of Appeal dismissed Kevin Osler's appeal.
The Court of Appeal determined it lacked jurisdiction to hear the appeal because leave of the High Court was required under s.69(6) of the Arbitration Act 1996, and this had been refused by HHJ Monty KC. The Court of Appeal found that HHJ Monty's decision to dismiss Kevin's application was a decision under s.69 to refuse leave to appeal.
HHJ Monty's dismissal of the application to set aside the Joanna Smith Order was upheld.
HHJ Monty correctly interpreted the procedural rules and found that once permission to appeal under s.69 was refused on paper, that was a final determination and there was no right to renew it.
Joanna Smith J's refusal of permission to appeal was implicitly upheld.
The Court of Appeal found that the valuation issue turned on the construction of a one-off contract and did not raise a point of general public importance. Therefore, permission to appeal could only have been granted if the award was obviously wrong, which the court did not find to be the case.
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