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High Court rules out “retrospective” arbitration appeal

[1]

Meade: Defendant had ample time to decide whether to appeal

The High Court has ruled that it has no power to consider a “retrospective” application for permission to appeal against its judgment in an arbitration case which was itself an appeal.

Mr Justice Meade rejected the defendant’s argument that section 69 of the Arbitration Act disapplied CPR 52 “so thoroughly” that in arbitration cases the court retained the power to grant permission to appeal “for a long and undefined period”.

In Kirby & Ors v Baker & Metson Ltd [2020] EWHC 3181 (Ch) [2], Meade J was ruling on an attempted appeal by the defendant against his judgment on the case in October. This allowed an appeal by an agricultural tenant against the decision of an arbitrator appointed under the Agricultural Holdings Act 1986.

Meade J said the unsuccessful landlord defendant made no application for permission to appeal to the Court of Appeal on the day of the High Court’s decision in the case, 7 October, “nor was any application made to adjourn the handing down to allow permission to appeal to be sought later”. The parties had received a draft on 5 October.

A week after the High Court’s decision, when Meade J made an order following his judgment, there was still no application to appeal.

The judge said this was because counsel for the defendant was under the “mistaken impression” that permission to appeal from his decision could be sought either from the Court of Appeal or from him.

The defendant now accepted that it this was “incorrect” because of section 69(8) of the Arbitration Act 1996, which makes it clear that the High Court must give leave.

Realising its mistake, the defendant sought permission to appeal from Meade J on 29 October, just outside the 21-day period for filing an appellant’s notice under CPR 52.12, “were that to apply”.

Meade J said the defendant argued that the requirement in CPR 52.3(2)(a) to seek permission to appeal from the ‘lower court’ (the High Court in this case) ‘at the hearing at which the decision was made’ had “no application at all” to appeals under section 69(8) of the Arbitration Act.

The claimant argued that CPR 52.3(2)(a) did apply and permission to appeal had to be sought on 7 October, the day of the decision, meaning that Meade J “had no power thereafter to consider the application, and no discretion to extend time”.

Meade J said there was “amply enough time” for defendant to decide whether or not to appeal before 7 October.

“As can be seen from my main judgment, the point at issue was a single, narrow question of law and my judgment was not long. It was a binary issue and only two outcomes were possible.

“This was not a case where the losing party needed time to analyse the judgment and consider whether, for example, factual findings made an appeal impossibly difficult.”

Nor did the judge “suggest or make an order on 7 October adjourning the question of permission to appeal”.

Meade J said there was nothing in section 69(8) of the Arbitration Act to support the “extensive or indeed total disapplication of CPR 52” for which the defendant argued and which would produce “an irrational result, far too vague and uncertain”.

He went on: “The result would be particularly irrational, or at least illogical, given that in the arbitration context finality and certainty is regarded as especially important.

“That is, after all, why a further appeal requires permission of the High Court and a point of general importance or another special reason.”

Applying the leading Court of Appeal ruling in McDonald v Rose [2019] EWCA Civ 4, Meade J said he agreed with the claimant that “a retrospective application for permission to appeal, where the judgment has been handed down and the hearing has not been adjourned, cannot be considered by the lower court”.

This meant that he had no power to grant permission for an appeal after 7 October or extend time. Permission to appeal was refused.