According to sections 69(6) and 105(1) of Part I of the Arbitration Act 1996, permission from the High Court or a county court was necessary to appeal a decision granting or denying leave to appeal. Therefore, if leave to appeal was required under section 69(6), it had to be granted by the lower court and not by the Court of Appeal. In this case, section 69(6) was applicable, and the Court of Appeal lacked the jurisdiction to hear the appeal.
The appellant appealed an order that refused to set aside the denial of permission to appeal against an arbitration award. The underlying proceedings involved a farming partnership between the appellant and his brother. According to the partnership deed, the appellant had the option to purchase his share of the partnership's capital and assets.
After his brother's death in 2019, the appellant exercised this option. A dispute arose with the respondent executors over the price, leading to arbitration. The arbitrator ruled that the respondents were entitled to have an account prepared as of April 5, 2019, reflecting the current market value of the partnership assets rather than their historical cost (the valuation award). Under section 69 of the Arbitration Act 1996, the appellant sought permission to appeal the valuation award.
The High Court refused permission to appeal the papers (the October 2022 order). The appellant's attempt to set aside the October 2022 order was dismissed by the High Court, which also refused permission to appeal (the May 2023 order). The Court of Appeal then granted the appellant permission to appeal the May 2023 order.
Appeal dismissed.
Section 69 of the Arbitration Act 1996 deals with appeals on points of law from arbitral proceedings. According to Section 69(6), the "leave of the court" is required for any appeal from a decision to grant or refuse leave to appeal. The question in this case was whether Section 69(6) applied; if so, the "leave of the court" would be required. Section 105(1) defines "court" in the Act as the High Court or a county court.
Therefore, if leave to appeal was required under Section 69(6), it had to be granted by the lower court and not by the Court of Appeal, as established in <span class="news-text_italic-underline">Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (Leave to Appeal) [2001] Q.B. 388, [2000] 7 WLUK 877</span>.
The High Court judge who made the May 2023 order had refused permission to appeal that order. Consequently, if Section 69(6) applied, the Court of Appeal's purported grant of permission to appeal was invalid. Whether Section 69(6) applied depended on whether the May 2023 order was a decision "to grant or refuse leave to appeal" from the arbitrator, which it was.
Although the appellant had requested the High Court to set aside the October 2022 order, it was clear that he was seeking to vary it and obtain leave to appeal against the arbitrator's award. He had indicated that he hoped the court would recognise the matter as one of public importance and that the arbitrator's decision was "obviously wrong." Thus, the application was not merely to set aside the October 2022 order but to replace it with a grant of permission to appeal.
The High Court had dismissed that application, effectively refusing to grant permission. This refusal constituted a "decision of the court... to grant or refuse leave to appeal" within the meaning of Section 69(6). As a result, the leave of the High Court was required to appeal that decision, which had been refused. Therefore, the current court had no jurisdiction to hear the appeal (see paragraphs 19-21, 25 of the judgment).
