Judge Wrong to Accept Appeal of Fact
The charterers had sought to appeal the arbitrators’ findings on foreseeability and remoteness. The judge had set aside the arbitration award. Though he certified that a point of law existed which was of general public importance, he had refused leave to appeal.
Held: The court granted leave. The judge’s action was illegitimate because these were issues of fact (or, at least, mixed fact and law) and thus not appealable as questions of law. On the application for leave to appeal, the test for the exercise of court’s discretion was whether the point was one which should be considered by the court, and not only whether the judge was thought to be in the wrong. The discretionary test for leave to appeal is that the question of law is ‘worthy of consideration by the Court of Appeal’: ‘In the final analysis, the question for this Court is: is its decision one which it considers open to any serious doubt; or (putting it another way), is there any realistic possibility that the Court of Appeal might come to a different result.’
As to an appeal under the section of the 1979 Act 1979 on ‘a question of law arising from an arbitration award’, Steyn LJ said: ‘For those concerned in this case that is a statement of the obvious. But it matters. It defines the limits of the jurisdiction of the Court hearing an appeal under the 1979 Act. The arbitrators are the masters of the facts. On an appeal the Court must decide any question of law arising from an award on the basis of a full and unqualified acceptance of the findings of fact of the arbitrators. It is irrelevant whether the Court considers those findings of fact to be right or wrong. It also does not matter how obvious a mistake by the arbitrators on issues of fact might be, or what the scale of the financial consequences of the mistake of the fact might be. That is, of course, an unsurprising position. After all, the very reason why parties conclude an arbitration agreement is because they do not wish to litigate in the Courts. Parties who submit their disputes to arbitration bind themselves by agreement to honour the arbitrators’ award on the facts. The principle of party autonomy decrees that a Court ought never to question the arbitrators’ findings of fact . . From time to time attempts are made to circumvent the rule that the arbitrators’ findings of fact are conclusive . . This catalogue of challenges to arbitrators’ findings of fact points to the need for the Court to be constantly vigilant to ensure that attempts to question or qualify the arbitrators’ findings of fact, or to dress up questions of fact as questions of law, are carefully identified and firmly discouraged.’
Steyn LJ
[1991] 3 All ER 554, [1991] 1 WLR 776, [1993] 1 Lloyd’s Rep 215, Times 26-Nov-1990, [1991] 2 Lloyds Rep 318
Arbitartion Act 1979 1(3)(b)
England and Wales
Citing:
Considered – Pioneer Shipping Ltd v BTP Tioxide Ltd (‘The Nema’) HL 1982
There is no fetter on the judicial discretion to refuse leave under Section 1(3)(b) to appeal against an arbitration award.
Frustration of a contract is ‘not likely to be invoked to relieve contracting parties of the normal consequences of . .
Cited by:
Appeal from – 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 – Guangzhou Dockyards Co Ltd v Ene Aegiali I ComC 5-Nov-2010
No appeal on facts from award
The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .
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 . .
Cited – Huggett v Secretary of State for the Environment Etc; Wendy Fair Markets Ltd v Same; Bello v Etc CA 1-Mar-1995
There is no power for Court of Appeal itself to give leave to appeal after High Court’s refusal of leave on an enforcement notice. The court rejected the applicant’s submission that a High Court judge’s decision refusing permission to appeal under . .
Lists of cited by and citing cases may be incomplete.
Arbitration, Litigation Practice
Leading Case
Updated: 11 November 2021; Ref: scu.430592