Kevin Osler v Marlene Osler & Ors
[2024] EWCA Civ 516
Norfolk County Council v Blanmar 2 LLP
17 August 2023
[2023] EWHC 2120 (TCC)
High Court
A council lost its bid to appeal a decision about whether an arbitrator had the right to hear their case. The judge decided that the council's arguments weren't strong enough to warrant a higher court looking at the case again.
Key Facts
- •Norfolk County Council (Claimant) brought a claim under section 67(1)(b) of the Arbitration Act 1996 against Blanmar 2 LLP (Defendant).
- •The claim challenged an arbitrator's award concerning his jurisdiction to determine a dispute.
- •The dispute related to the interpretation of Article 46 of a Development Consent Order (DCO).
- •The Claimant sought permission to appeal two decisions: (1) the dispute was a "difference under any provision of the DCO"; and (2) the dispute was not "otherwise provided for" under Article 46.
- •The Claimant raised four grounds of appeal, focusing on alleged errors in statutory interpretation and consideration of relevant factors.
Legal Principles
Permission to appeal under section 67(4) of the Arbitration Act 1996 requires the High Court's permission; the usual civil standard for a first appeal applies.
Merkin on Arbitration Law, CPR 52.6(1)
Statutory interpretation requires consideration of the practical consequences of competing interpretations.
Patterson v Ministry of Defence [2012] EWHC 2767 (QB), Bennion, Bailey and Norbury on Statutory Interpretation
Post-contractual conduct is inadmissible in interpreting contracts or statutory instruments.
The Privalov guidance on arbitration clauses applies broadly, even to clauses within statutory instruments.
Privalov
The policy of the Arbitration Act 1996 discourages further appeals; permission is rarely granted.
Amec Civil Engineering v Transport Secretary [2005] 1 WLR 2339 (CA)
Outcomes
The Claimant's application for permission to appeal was dismissed.
The court found that none of the Claimant's grounds of appeal had a real prospect of success. The court rejected arguments concerning the exclusion of practical considerations, irrelevant considerations, and misinterpretations of Article 46.