Whilst the court of appeal did have a residual discretion to review a refusal by a judge of a grant of leave to appeal against an arbitration based upon an allegation of unfairness such as should undermine the fairness of the decision, that discretion should be exercised only in exceptionally rare cases. It did not have the power to grant leave itself. The court must look for not only an error of law, but for such a substantial defect in the fairness of the process as to invalidate the decision. This was something more than perversity.
Rix LJ said: ‘Subject to the question of a residual jurisdiction in cases where what is in question is not a review of the commercial judge’s discretion (which as I have said there is common ground cannot be the subject matter of an appeal from a refusal of leave under section 69(8)) but a matter of unfairness, I do not consider any of this to be now capable of dispute.’
and ‘I am not here concerned with the width of judicial review, but with the distinction between a decision on the merits, right or wrong, and the process by which the decision is supposedly taken, adequate or flawed by unfairness.
In my judgment, the dictum of Mustill LJ demonstrates, even before the Human Rights Act, the limits of the Lane v Esdaile principle, and the need for a residual jurisdiction to deal with misconduct or unfairness (or even mischance) in the decision-making process . .’
Sir Anthony Clarke, Master of the Rolls, Lord Justice Rix and Lord Justice Longmore
Times 03-Nov-2006, [2006] EWCA Civ 1340, [2007] Bus LR 162, [2006] 2 CLC 441, [2007] 1 Lloyd’s Rep 142, [2007] CP Rep 4, [2007] 1 All ER (Comm) 501, [2006] HRLR 43, [2007] 1 Lloyds Rep 142
Bailii
Arbitration Act 1996 69(8)
England and Wales
Citing:
Appeal from – CGU International Insurance Plc and others v Astrazeneca Insurance Company Ltd ComC 1-Dec-2005
. .
Approved – North Range Shipping Ltd v Seatrans Shipping Corporation CA 14-Mar-2002
The parties had been involved in an arbitration. The claimant sought leave to appeal. The judge refused to give leave, but did not say exactly why.
Held: Human Rights law required a right of appeal. That right could only be exercised properly . .
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .
Cited by:
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.245344
