CPR 3.3(5) & Applications to Challenge Arbitration Awards Dealt with on Paper
In the recent decision of the Commercial Court in WSB v FOL [2022] EWHC 586 (Comm), Calver J. dismissed an application made by one of the parties to set aside an earlier order of Moulder J DBE under CPR 3.3(4) which was made without a hearing (‘order of Moulder J DBE’)[1]. The order of Moulder J DBE had refused the party permission to appeal under s. 69 of the Arbitration Act 1996 (‘1996 Act’) whilst also dismissing the application to challenge an arbitral award under s. 67 and s. 68 of the 1996 Act[2]. The decision sets out the general procedure which applies in applications for permission to appeal under s. 69 of the 1996 Act as well as the circumstances in which the Court will determine applications to challenge an arbitral award on the papers.
Decision
The Court set out the essential procedural background at [3] – [7], in essence:
- Paragraph O.8.1 of the Commercial Court Guide stated that on an application for permission to appeal against an arbitration award:
“(l) The Court will normally determine applications for permission to appeal without an oral hearing but may direct otherwise, particularly with a view to saving time, including court time, or costs.
(m) Where the court considers that an oral hearing is required it may give such further directions as are necessary.
(n) Where the court refuses an application for permission to appeal without an oral hearing it will provide brief reasons”
Paragraph O.8.6 – O.8.7 states, where material:
“The court has power under r.3.3(4) and/or r.23.8(c) to dismiss any claim without a hearing. It is astute to do so in the case of challenges to awards under s. 67 or s.68 of the Act, where the nature of the challenge or the evidence filed in support of it leads the court to consider that the claim has no real prospect of success …
Where the court makes an order dismissing a s.67 or s.68 claim without a hearing pursuant to O8.6, where of its own motion or upon a respondent’s notice inviting it to do so, the applicant will have the right to apply to the court to set aside the order and to seek directions for the hearing of the application. If such an application is made and dismissed after a hearing the court may consider whether it is appropriate to award costs on an indemnity basis”
- CPR 3.3(5) states:
“Where the court has made an order under paragraph (4) –
- A party affected by the order may apply to have it set aside, varied or stayed; and
- The order must contain a statement of the right to make such an application”
- The Court noted that an application under CPR 3.3(5) involved a rehearing of the issue rather than a review of the decision which was made and that the ‘approach of the court on such applications should be to determine whether there is a real prospect of success such that the case should be allowed to go forward to a full hearing of the s. 68 application’[3], citing Midnight Marine v Thomas Miller [2018] EWHC 3431 per Males J at [38] – [39].
- The Court cited Kuznetsov, R (on the application of) v London Borough of Camden [2019] EWHC 2910, per Mostyn J at [24] that the test was “‘to give due weight to the decision of the judge who dealt with the matter without a hearing and [for the order to be set aside the applicant] should be able to identify a good reason for disagreeing with his or her decision”[4].
One of the parties had argued that the court had erred in determining the relevant challenges without a hearing and that there was ‘a good reason’ for disagreeing with the decision of Moulder J DBE on the basis that ‘having heard both sides’ arguments the court may prefer to deal with more than simply setting aside the order and giving directions for a further hearing and that WSB would not object to the court proceeding to determine its application for permission to appeal under s. 69 or even, if time allows, its challenges under s. 67 and 68 and the substantive appeal under s.69’[5].
The Court rejected this approach noting that it would be “fundamentally at odds with the approach which Males J explained should be taken in a case such as this and it impermissibly seeks to sidestep the strict requirements upon applications for permission to appeal, particularly in the case of s. 69”[6]. The Court emphasised that s. 67 and s. 68 challenges will only be “heard orally if there is good reason to do so or a real prospect of success”[7].
With regards to s. 69 applications for permission to appeal, the Court noted that they will ‘ordinarily’ be dealt with on the paper (citing s. 69(5) of the 1996 Act)’[8] and that there was no equivalent to s. 69(5) in sections 67 and 68, the reasons for the difference lying in the fact that an applicant making a challenge under s. 67 and s. 68 has an ‘“as of right” hearing because the challenge is to the tribunal’s substantive jurisdiction or on the ground of a serious irregularity affecting the tribunal’s process … [whereas] Under s. 69, there is a threshold “permission” application (which must be passed before this court will hear the appeal), which is ordinarily determined without a hearing under s. 69(5) of the Act. There is no right to a rehearing of that decision orally’[9]. The Court emphasised that this could not or should not be ‘circumvented by seeking to set aside an order under s. 69 which has been made on paper and then having the matter listed for a rehearing’[10].
Comment
The recent decision of the Commercial Court is a reminder of the limited scope of CPR 3.3(5) in any attempts to try and revisit a decision to dismiss a challenge made under s. 67 or s. 68 of the 1996 Act. The Court was also keen to emphasise the clear position in relation to s. 69 applications for permission to appeal which are to be determined on the papers and in relation to which there is “no right to a rehearing of that decision orally”[11].
[1] WSB v FOL [2022] EWHC 586 (Comm), per Calver J. at [1]
[2] WSB v FOL [2022] EWHC 586 (Comm), per Calver J. at [1]
[3] WSB v FOL [2022] EWHC 586 (Comm), per Calver J. at [6]
[4] WSB v FOL [2022] EWHC 586 (Comm), per Calver J. at [7]
[5] WSB v FOL [2022] EWHC 586 (Comm), per Calver J. at [8]
[6] WSB v FOL [2022] EWHC 586 (Comm), per Calver J. at [8]
[7] WSB v FOL [2022] EWHC 586 (Comm), per Calver J. at [9]
[8] WSB v FOL [2022] EWHC 586 (Comm), per Calver J. at [10]
[9] WSB v FOL [2022] EWHC 586 (Comm), per Calver J. at [10]
[10] WSB v FOL [2022] EWHC 586 (Comm), per Calver J. at [10]
[11] WSB v FOL [2022] EWHC 586 (Comm), per Calver J. at [11]
