The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal.
Held: The court granted leave to appeal but dismissed the appeal itself. Section 44 gave the court the power to make such an order where it was necessary to preserve either evidence or assets. A decision of a judge which the court had no jurisdiction to make is not a decision ‘under the section’ within the meaning of section 44(7) of the 1996 Act. On the true construction of section 44(3) of the 1996 Act, if the case is one of urgency the court only has jurisdiction to make such orders as it thinks necessary for the purpose of preserving evidence or assets, but the judge had here purported to make an order under section 44(3) on a wider basis and thus had no jurisdiction to make it on that wider basis. Wherever leave is required from the ‘court’, the ‘court’ is the court of first instance.
Judges:
The Vice Chancellor Lord Justice Clarke and Lord Justice Neuberger
Citations:
[2005] EWCA Civ 618, Times 13-Jun-2005, [2005] 1 WLR 3555
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Scherer v Counting Instruments Ltd (Note) 1986
Section 18(1)(f) which provides that no appeal shall lie to the Court of Appeal without the leave of the lower court ‘relating only to costs which by law are left to the discretion’ of the lower court, has no application if the appeal court is able . .
Cited – Aden Refinery Co Ltd v Ugland Management Co Ltd CA 1986
A dispute under a charterparty was referred to arbitration.
Held: The charterers were refused leave to appeal to the court under section 1(3)(b) of the Arbitration Act 1979. They were also refused leave to appeal to the court under section . .
Cited – Hiscox Underwriting Limited v Dixon 2004
Arbitration proceedings had been commenced betweeen the parties, and an order was sought under s244.
Held: Without such an order the insurers could suffer substantial losses before the arbitrator could itself make the necessary orders. The . .
Cited – Virdee v Virdi CA 2003
. .
Cited – Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited CA 25-May-2000
Where a party appealed against an arbitration to the County or High Court, the court which gave judgment was the sole body able to give permission to enter an appeal under the Act. An appellate court did not have jurisdiction to give leave to . .
Mentioned – Harbour General Works Ltd v Environment Agency 2000
. .
Mentioned – Collins (Contractors) Ltd v Baltic Quay Management (1994) Ltd CA 7-Dec-2004
The claimant sought payment under its invoice for construction works. The contractor gave notice of its intention to withhold payment, and then also sought to refer the matter to arbitration. The claimant said that the notice had prevented the . .
Mentioned – Warborough Investments Ltd v S Robinson and Sons (Holdings) Ltd CA 10-Jun-2003
The applicant sought remission of the decision of the arbitrator on a rent review. The arbitrator had taken a different approach from that suggested by either party’s expert.
Held: Arbitrators should be give a wide margin of appreciation. Even . .
Cited – Virdee v Virdi CA 2003
. .
Cited – Athletic Union of Constantinople v National Basketball Association and Others CA 28-May-2002
A party had been refused leave to appeal against an arbitration under the Act by the judge, but later obtained leave to appeal.
Held: Such leave could only be granted by the trial judge, and the Court of Appeal could set aside the leave . .
Mentioned – Halki Shipping Corporation v Sopex Oils Ltd, The Halki QBD 16-Jul-1997
The rule that an arbitrator decided all matters arising from a contract was not changed by the change in wording in the new Act. Provisions in new Arbitration Act severely limit choice of alternative forum where arbitration clause in place. . .
Cited – Johnston v W H Brown Construction (Dundee) Ltd IHCS 7-Jun-2000
The cost of employing an architect to draw up a schedule of defects under a building contract was not recoverable as damages. The rights under this contract required remediation of the defects discovered and listed, and did not envisage other . .
Cited – Hussmann (Europe) Ltd. v Al Ameen Development and Trade Company and others ComC 19-Apr-2000
. .
Mentioned – ABB Lummus Global Ltd v Keppel Fels Ltd 1999
. .
Cited – Azov Shipping Company v Baltic Shipping Co. (No. 2) ComC 12-Jan-1999
ComC Security for costs. . .
Mentioned – Federal Insurance Company and Another v Transamerica Occidental Life Insurance Co ComC 22-Jun-1999
ComC For the purposes of filing a vacancy where an arbitrator has ceased to hold office, pursuant to sections 27(3) and 16 of the Arbitration Act 1996: the arbitration clauses agreed procedure for appointment of . .
Mentioned – Azov Shipping Company v Baltic Shipping Co. (No. 2) ComC 12-Jan-1999
ComC Security for costs. . .
Mentioned – Laker Airways Inc v FLS Aerospace Ltd and Another ComC 21-May-1999
A barrister, appointed to act in an arbitration, was not to be prevented from acting, because another barrister in the same set acted for one of the parties. The conditions for removal of an arbitrator was as to the objective presence of bias. . .
Cited – The National Insurance and Guarantee Corporation Ltd v M Young Legal Services Ltd 2004
In an urgent case, the court can make an order under section 44(3) notwithstanding that it involved making at least some determination of the rights of the parties under a contract in which the parties had agreed that the determination of their . .
Appeal from – Cetelem Sa v Roust Holdings Ltd QBD 29-Dec-2004
Choses in action including contractual rights are ‘assets’ within the meaning of section 44(3). . .
Cited by:
Cited – ASM Shipping Ltd of India v TTMI Ltd of England CA 16-Oct-2006
The court at first instance had dismissed the ship-owner’s application to set aside the arbitration award, and then refused leave to appeal. The court of appeal had to consider whether it had jurisdiction itself to hear an application for leave.
Cited – Sumukan Ltd v The Commonwealth Secretariat CA 21-Mar-2007
The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Cited – Delta Reclamation Ltd v Premier Waste Management Ltd QBD 24-Oct-2008
The claimant sought a stay of the matter and a consolidated arbitration. The defendant said that the litigation having been started by the claimant it was too late to refer the issues to arbitration.
Held: Correspondence between the parties . .
Cited – UST-Kamenogorsk Hydropower Plant Jsc v AES UST-Kamenogorsk Hydropower Plant Llp SC 12-Jun-2013
Arrangements between the parties owners and operators of a power plant in Kazakhstan required disputes to be arbitrated in London under ICC Rules. That clause was governed by English law, and the remainder by Kazakh law. A ruling by the Supreme . .
Cited – Sankofa and Another v The Football Association Ltd ComC 12-Jan-2007
The claimant sought an injunction to order the defendant football association from preventing him playing on a football match. He had been sent off and was subject to an automatic additional one match ban. He sought to exercise a right under the . .
Lists of cited by and citing cases may be incomplete.
Arbitration
Updated: 25 February 2022; Ref: scu.225227