English Court of Appeal refuses permission to appeal dismissed s67 claim

In a further development in the case of Union Marine Classification Services LLC v The Government of the Union of Comoros covered on our blog here, the Court of Appeal ("Court") has refused to grant permission to appeal. The claim was originally made under s67 of the English Arbitration Act 1996 (which relates to lack of jurisdiction) in respect of an additional award made under s57(3) of the Act (which allows a tribunal to make an additional award in respect of a claim which was presented to the tribunal but not dealt with in an earlier award). The claim was dismissed on the basis that it should have been brought under s68 of the Act (relating to serious irregularity), rather than s67. The judge had also refused to extend the time limit to allow the claimant to make an application under s68, noting that the claim would have failed on the merits in any event and refused permission to appeal. The applicant sought permission to appeal from the Court on the basis that the judge was wrong in both his conclusion that the claim fell outside s67 and his refusal to allow an extension of time.

The Court focussed its analysis on the practical point on whether an appeal would have had any real prospect of success, finding in no uncertain terms, that it would not and that granting permission to appeal "would simply cause the parties to incur further costs to no good purpose".

The case raised a further question as to the effect of s67(4) of the Act which provides that "leave of the court is required for any appeal from a decision of the court". The Court did not reach any conclusion on whether it actually had jurisdiction to hear an appeal against an order dismissing a s67 challenge where the court had not granted permission to appeal. This point has been decided in the negative in the recent case of Integral Petroleum SA v Melars Group, discussed on our blog here. The judgment in Integral Petroleum was not before the Court.

Comment

This decision is another in a long line of English pro-arbitration decisions and takes a commercial, practical approach: the Court focused on the practically relevant point, namely whether the claim had a real prospect of success. It also bears noting that the Court dealt with the question of the tribunal's awards in a holistic way – considering the award and the additional award made under s57(3) together – rather than falling into what it identified as "the very trap of piecemeal construction" which the applicant accused the judge of falling into.  In fact, the Court's approach was consistent with the basis of the lower court's decision, which in itself showed an awareness of the arbitration process, its typical characteristics and, further, gave sufficient leeway to that process to correct itself, without undue interference from the courts as intended by s57 of the Act.

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