Telia Sonera AB v Hilcourt (Docklands) Ltd

I have to deal with the question of permission to appeal. The governing statutory provision is s.69(8) of the Arbitration Act 1996 (“the Act”). That subsection provides:

“The decision of the court on an appeal under this section shall be treated as a judgment of the court for the purposes of a further appeal. But no such appeal lies without the leave of the court which shall not be given unless the court considers that request is one of general importance or is one which for some other special reason should be considered by the Court of Appeal.”

In giving permission to appeal from the arbitrator under s.69(1) of the Act, Mr Justice Neuberger, having regard to the requirements of s.69(1)(3)(c)(ii) (which provides that leave to appeal from the arbitrator should only be given if the court is satisfied the question raised is one of general public importance), said at paragraph 7 of his written judgment:

“I consider that the point is one of genuine public importance, even though I accept Mr Berry’s point that the issue will depend inevitably on the terms of this particular contract and that one is not here concerned with a standard provision or standard condition. Nevertheless, it seems to me that the issue would involve deciding the meaning effect and extent of the bracketed words in section 48(5)(b) of the 1996 Act, which will have to apply to many contracts. Although I accept that it may be something of an over-simplification, the issue on the appeal would effectively be whether the problem encompasses all aspects of the contract which, viewed as a whole, relates to land, or whether one simply asks whether the provision or provisions sought to be enforced relates or relate to land. Again, the concept of “general public importance” can carry different meanings in different circumstances and can be the subject of elaborate redefinition, which I think should be avoided.”

It is common ground between the parties that, if I refuse permission to appeal, the Court of Appeal has no power itself to grant permission.

The different considerations I have to take into account pull in two directions. On the one hand the analysis of Mr Justice Neuberger, which I have quoted, is plainly correct. Potentially, the issue raised on this appeal, which turns on the meaning and effect of s.48(5)(b) of the Act, is capable of applying to many other cases.

On the other hand, I bear in mind two other factors. The first is that it would appear Mr Justice Neuberger did not have the benefit of any submissions as to the history of the wording, and the exclusion, in s.48(5)(b) of the Act. That section, as I said in my judgment, goes back as far as the Arbitration Act 1934. This appears to be the only case, of which the parties are aware, in which the point of law in question has been raised. That tends to suggest that in fact the point is not one of general pressing importance.

The second factor I have to take into account is that the whole ethos of the Act is that there should be speed, efficiency and finality in the conduct of arbitration proceedings. That is what lies behind the restriction on the ability of the parties to appeal, not only from the arbitrator but also from the High Court to the Court of Appeal.

In this particular case both the arbitrator and I have reached the same decision. I must consider whether it is appropriate to continue further the uncertainty of the outcome of the arbitration by granting permission to appeal.

Bearing in mind that both my decision and that of the arbitrator are the same, for essentially the same reasons, absent s.69(8) of the Act, I would not have given permission to appeal.

The question therefore is simply whether I do give permission to appeal, even though I do not consider that an appeal has a real prospect of success. As I have said, I consider, in view of the history of this particular legislative provision going back to 1934 and the absence of any litigation over the issue in question since that time, that the issue is not in reality, contrary to first impression, one which is of general importance.

For those reasons, and notwithstanding everything that Mr Morgan has so attractively said on behalf of Telia, this is not a case in which it is appropriate to give permission to appeal under s.69(8) of the Act.