Primera Maritime (Hellas) Ltd & Ors v Jiangsu Eastern Heavy Industry Co Ltd & Anor

The claimants were the buyers under two shipbuilding contracts with the defendants dated 12 July 2007 in relation to two Kamsarmax bulk carriers to be built at the defendants’ yard in China. Disputes arising under both contracts were referred to arbitration in London pursuant to the LMAA Terms 2006 before the same tribunal, David Aikman, Mark Hamsher and Michael Howard QC. The basis for the claimants’ claim for damages, so far as currently relevant, was that from 19 October 2007, the defendants had been in anticipatory breach of contact by refusing to perform the contracts in accordance with their terms, specifically in relation to delivery by the contractual delivery dates in 2011, and hence renounced the contracts.

The arbitration hearing took place over two and a half weeks, with eight days of oral evidence, both parties being represented by leading counsel. In all over 700 pages of written submissions in opening and closing were presented to the tribunal which stated at [12] of its Reasons that: “It is because of the thoroughness of those submissions that we have been able to express our Reasons in comparatively concise terms”. Nonetheless, the tribunal’s third Interim Award dated 29 November 2012 was supported by detailed Reasons running to 84 pages. By that Award, the tribunal dismissed the claims, holding that although the defendants had renounced the contracts in an email of 19 October 2007 and at a meeting on 6 November 2007, the claimants thereafter affirmed the contracts.

The claimants now apply under section 68(2)(d) of the Arbitration Act 1996 to set aside that Award and remit it to the tribunal, on the grounds that the tribunal failed to deal with two issues which the claimants had put before them: (i) that the renunciation by the defendants was continuous; and (ii) in relation to the quantum of the claimants’ claim, that the claimants would have “flipped” the contracts.

Notwithstanding the elegant and well-reasoned submissions of Mr Robert Bright QC on behalf of the claimants, by the end of the hearing of the application under section 68 I had concluded that the application should be dismissed. I informed the parties that that was my decision and that I would give a judgment setting out my reasons at a later date. This is that judgment.

Section 68 of the Arbitration Act 1996 provides, inter alia, as follows:

In order to succeed under section 68 an applicant needs to show three things. First of all, a serious irregularity. Secondly, a serious irregularity which falls within the closed list of categories in section 68(2). Thirdly, that one or more of the irregularities identified caused or will cause the party substantial injustice. As Hamblen J said in Abuja International Hotels v Meridian SAS [2012] EWHC 87 (Comm) at [48] to [49], the focus of the enquiry under section 68 is due process, not the correctness of the tribunal's decision. As the DAC Report states, and numerous cases since have reiterated, the section is designed as a long-stop available only in extreme cases where the tribunal has gone so wrong in its conduct of the arbitration that justice calls out for it to be corrected. This point, that section 68 is about whether there has been due process, not whether the tribunal “got it right”, is of particular importance in the present case, where, for the reasons set out below, the claimants’ real complaint is that they consider that the tribunal reached the wrong result, not a matter in relation to which an arbitration Award is susceptible to challenge under section 68.

In cases under section 68(2)(d), there are four questions for the court: (i) whether the relevant point or argument was an “issue” within the meaning of the sub-section; (ii) if so, whether the issue was “put” to the tribunal; (iii) if so, whether the tribunal failed to deal with it; and (iv) if so, whether that failure has caused substantial injustice: see per Andrew Smith J in Petrochemical Industries Co v Dow Chemical [2012] EWHC 2739 (Comm); [2012] 2 Lloyd’s Rep 691 at [15].

Andrew Smith J goes on to discuss what constitutes an “issue” and summarises the earlier authorities at [16]:

The learned judge then went on to reject suggested yardsticks for measuring what is an “issue” by reference to what was or might have been in a list of issues. He went on to conclude that the particular point in that case, whether the defendant had assumed responsibility for the loss was an “issue” within the meaning of the sub-section rather than simply an argument in the broader issue of foreseeability, at [21]:

Having found that that issue had been put to the tribunal, the learned judge went on to deal with the third issue about whether the tribunal had “dealt with” the issue in two paragraphs which are of some assistance in the present case, [26] and [27]:

In his submissions before the court, Mr Bright QC submitted that the claimants’ case on affirmation at the arbitration had run a number of quite separate arguments on affirmation, two of which are relevant for present purposes: (i) that the defendants, having renounced the contracts in their email of 19 October 2007, had committed a number of specific repetitions of that renunciation, at the meeting of 6 November 2007 and in the Prospectus issued on 11 December 2007, so that even if there had been an affirmation prior to 11 December 2007, that would not preclude the claimants from relying on the renunciation in the Prospectus; (ii) the defendants’ renunciation was continuous and an affirmation at one stage is not an irrevocable affirmation for all time in the future. Therefore, an affirmatory act at an earlier stage did not preclude the claimants from terminating when they did on 22 January 2008. The claimants’ case was that the tribunal had dealt with the first of these arguments but not the second. Accordingly, they submitted that was an issue put to the tribunal which it had failed to deal with.

I agree with Mr Dunning QC that when one looks at the claimants’ written closing submissions where the question of affirmation was dealt with in detail, the clear delineation Mr Bright QC now relies upon is strikingly absent. Thus, this section of their submissions is headed “Repetition/continued renunciation”. It begins by referring to the specific instances of renunciation relied upon: the email of 19 October 2007, the meeting of 6 November 2007 and the Prospectus dated 11 December 2007 and sets out the first argument referred to in [11] above. In that context, the written submissions refer to one of the principles laid down by Moore-Bick J in Yukong Line Ltd of Korea v Rendsburg Investments Corporation [1996] 2 Lloyd’s Rep 604:

The next paragraph of the written submissions begins with the proposition that: “As well as a right to accept a fresh repudiation/renunciation after an initial affirmation, a party may, after affirmation, treat a continuation of the previous renunciatory/repudiatory stance as a renunciation/repudiation.” There is then citation of the two authorities upon which the claimants relied before the tribunal, the first of which is Safehaven Investments Inc v Springbok Ltd [1996] 71 P &CR 59, a decision of Jonathan Sumption QC sitting as a Deputy High Court Judge of the Chancery Division and in particular a passage in that judgment where the learned judge stated:

The claimants’ written submissions characterised this “as a case where the subsequent correspondence from the party in breach was properly to be understood as maintaining the position that the contract had been terminated, and thus repeated the renunciation” (my emphasis). The second case relied upon was the decision of the Court of Appeal in Stocznia Gdanska SA v Latvian Shipping Co [2002] 2 Lloyd’s Rep 436 a shipbuilding case where the buyers had indicated prior to payment of the second instalments that they could not perform the contracts and were thus in anticipatory breach. The yard issued keel-laying notices and then served notices of rescission when the second instalments were not paid. The Court of Appeal held the serving of keel-laying notices was not an unequivocal affirmation.

The claimants in their written submissions relied particularly on the obiter part of the judgment of Rix LJ which went on to discuss the position if it was wrong that there had not been an affirmation. They referred to [96] of his judgment where he held there was a continuing repudiation after affirmation and approved the analysis of Thomas J at first instance who had cited Safehaven and had said:

The claimants then referred to Rix LJ’s endorsement of counsel’s submission in that case that the buyer’s silence was a pregnant silence speaking of maintained recalcitrance, which continued in circumstances where there was a duty on the buyers to make it clear that they were not continuing with their previous repudiatory attitude of not being willing to proceed with the contracts unless they were renegotiated. The claimants relied on that analysis to submit that the defendants’ failure to respond to the claimants’ solicitors’ letter of 14 December 2007 (which ended with an insistence that within seven days the defendants unequivocally confirm that they would deliver the vessels by the original delivery dates) fell into the same category of a pregnant silence, in other words continued renunciation.

I agree with Mr Dunning that these written submissions, far from making separate arguments about repeated renunciation on the one hand and continuing renunciation on the other, essentially dealt with them as aspects of the same overall issue. It seems to me that the issue was whether, subsequent to the affirmation, the defendants had renounced the contracts, reviving the claimants’ right to terminate. Once it is recognised that that was the “issue” for the purposes of section 68(2)(d), the suggestion that the tribunal did not deal with it in its Award is unarguable. However, even if the “issue” was the narrower one of continuing renunciation, the tribunal did clearly deal with that issue, and it is to that question that I now turn.

In the section of the Award dealing with anticipatory breach, the tribunal dealt with the claimants’ case of renunciation from [56] onwards. At [61] the tribunal set out the four specific expressions of indifference relied on as constituting renunciation and at [62] it said:

Mr Bright relied upon the second sentence of that paragraph in support of his submission that the tribunal had overlooked his case on continuing breach and had only dealt with specific instances of renunciation. If that sentence were taken in isolation, that submission might have some force, but when one looks both at the paragraph as a whole and at the rest of the Reasons it is not a fair point. As Mr Dunning pointed out, the last sentence makes it clear that the tribunal had considered whether other matters required consideration as possible renunciatory breaches but considered they did not. Furthermore, that last sentence is an important indicator of the reasoning by which the tribunal ultimately reached the conclusion that other matters (such as the absence of response to the solicitors’ letter of 14 December) did not amount to renunciation: looking at all the communications, it did not consider this was a case of “pregnant silence”, a matter to which I return below.

The tribunal then went on to look at the four instances of renunciation in turn and concluded at [77] of the Reasons that the defendants’ email of 19 October 2007 was a renunciation. It then concluded at [78] that a further email of 22 October 2007 was not a fresh breach but constituted “a continuation of the Yard’s existing renunciation”. This is a fair indication that the tribunal had the case of continuing renunciation in mind. It went on to conclude at [87] that at the meeting on 6 November 2007, there had been: “another adamantine refusal by the Yard to meet the contractual delivery dates. This would have been a fresh anticipatory repudiation even if there had not already been such a breach on 19 October. As it was, it showed that the Yard was persisting in its renunciation of the contract”. Again, that last sentence demonstrates that the tribunal had in mind the concept of persisting or continuing renunciation. Finally, the tribunal considered the Prospectus of 11 December 2007 and concluded at [89] that it could not be considered renunciatory. Accordingly, the tribunal concluded the claimants had made out their case that on 19 October and 6 November 2007, the defendants had renounced the contracts.

The tribunal then went on to consider the defendants’ counter arguments, one of which was “repentance”, that since anticipatory breach necessarily occurs before the date for actual performance, a contract breaker can cure the default by repentance provided it occurs before the breach is accepted by the innocent party. At [96] the tribunal concluded that the defendants had not repented, but went on at [97] to discuss the limits of that point in what is an important passage when considering the claimants’ case that the tribunal overlooked the question of continuing renunciation:

I agree with Mr Dunning that the passages I have underlined in that paragraph indicate that the tribunal had well in mind the concept of continuing or repeated renunciation. Although Mr Bright sought to draw a sharp distinction between two concepts: repetition of a renunciation on the one hand and continuing renunciation on the other, in order to seek to demonstrate that the tribunal had dealt with the former argument but not the latter, in my judgment, as Mr Bright’s own written closing submissions before the tribunal demonstrate, there is not always a clear distinction. In a very real sense the supposed distinction between a repeated renunciation and a continuing renunciation through silence is a semantic one, since persisting in a previously expressed renunciation can be characterised as repetition, a point the tribunal itself makes at [99] in the passage quoted at [25] below. This is a matter to which I return below in relation to the critical paragraph of the Reasons, [134].

The tribunal then went on in the next section of its Reasons headed “Acceptance/Waiver/Election” to deal with the issue of affirmation. They began at [98] by citing a paragraph on anticipatory breach from Chitty on Contracts (at what is now [24-022] of the 31^st edition). Of particular relevance to the current debate is this passage:

In fact, although the tribunal does not set it out, the footnote reference at the end of that passage in Chitty is to the passage in the judgment of Rix LJ in the Latvian Shipping case where he deals with continuing or renewed anticipatory breach ([94]-[100]). In those circumstances and given the citation of that passage from Chitty, it seems to me impossible to contend that, at least at this stage of its reasoning, the tribunal did not have in mind the argument that there was a continuing renunciation.

At [99] of the reasons, the tribunal set out a summary of the legal principles applicable to waiver or affirmation, one of which was: “A party who has waived one anticipatory breach is not debarred from accepting its subsequent repetition, and repetition may consist in simply persisting in a previously expressed renunciation.” This is both a clear indication that the tribunal had the concept of continuing renunciation well in mind and a demonstration, as I have already said, that any distinction between repetition and continuation of a renunciation is more apparent than real.

The tribunal then went on to discuss in detail the defendants’ case on renunciation. It is not necessary to set out any of that detail but it is noteworthy, in the context of the criticisms levelled by Mr Bright against the tribunal’s conclusion at [134], that at [102] the tribunal said that this was not a case of mere silence and inaction in the relevant period between October 2007 and January 2008 but, as the tribunal found: “here, by contrast, there was constant communication. It was the character of three months of constant dealings between the parties and what that signified in terms of waiver or acceptance of the breach which concerns us.”

Having quoted extensively from the claimants’ solicitors’ letter of 14 December 2007 to which I have already referred, the tribunal said at [130] that if the claimants’ conduct by that date did not amount to waiver, then that letter confirmed that the claimants’ right to terminate for renunciatory breach was still alive. However, the tribunal concluded at [132] that the letter was too late and that, by early December 2007, the right to terminate had been lost because the claimants had waived the breach and affirmed the contracts. It then went on to hold at [133] that, even if that were wrong, the effect of the letter would have been that the tribunal would have concluded that there had been an affirmation by the end of 2007, because having set a seven day deadline for the defendants to give the unequivocal confirmation the claimants sought, once that deadline expired, the claimants should have terminated promptly thereafter and certainly by the end of the year, if that is what they wanted to do.

The tribunal then turned to the issue of whether there had been further renunciation in [134], a paragraph of some importance, so that it merits quotation in full:

Against the first underlined passage there was a footnote reference by the tribunal to Safehaven and Latvian Shipping. Notwithstanding that reference, which clearly demonstrates that what the tribunal had in mind by “future renunciatory breaches of the same character” was repeated or continuing renunciation, Mr Bright submitted that the tribunal had overlooked continuing renunciation and was dealing with specific expressions of renunciation in the future. I cannot accept that submission. Given that those cases had been cited by the claimants in their written submissions in support of their case that there had been a continuing renunciation through “pregnant silence”, it seems to me that the phrase “future renunciatory breaches of the same character” is the tribunal’s way of expressing the concept of continuing renunciation.

Mr Bright then effectively subjected each sentence of this paragraph to a minute textual analysis with a view to demonstrating that the tribunal had failed to deal with the question of continuing renunciation. That is the wrong approach. A number of cases have emphasised that the court should read the Award in a reasonable and commercial way and not by nitpicking and looking for inconsistencies and faults: see per Bingham J in Zermat Holdings SA v Nu-Life Upholstery Repairs Ltd [1985] EGLR 14 cited with approval by Andrew Smith J in [27] of Petrochemical Industries Co v Dow Chemical. A similar point was made by Teare J in Pace Shipping v Churchgate Nigeria Ltd [2009] EWHC 1975 (Comm); [2010] 1 Lloyd’s Rep 183 at [20] specifically deprecating a minute textual analysis. Quite apart from the fact that this is the wrong approach, it did not assist the claimants’ case. Instead it demonstrated that the tribunal had dealt with the argument about continuing renunciation.

To begin with, as Mr Dunning QC rightly pointed out, [134] of the Reasons very much tracks the points made in the claimants’ written closing submissions, starting with the citation of the same passage from the judgment of Moore-Bick J in Yukong v Rendsburg. I have already considered and dismissed Mr Bright’s submission that the phrase “future renunciatory breaches of the same character”, with its citation of Safehaven and Latvian Shipping, was not addressing the question of continuing renunciation. In relation to the next sentence: “The Buyers said that the Yard had provided no answer to their claim that repeated renunciations revived their right to terminate” Mr Bright submitted that, since the tribunal had gone on to say this was only relevant if the publishing of the Prospectus was a further renunciation, it was clearly only referring to specific utterances of express renunciation, not continuing renunciation through silence. If that sentence stood in isolation, that might be a good point, but it does not. Lower down the paragraph the tribunal addresses clearly the issue of whether silence can amount to a repeated or continuing renunciation.

In my judgment, despite Mr Bright’s attempts to argue the contrary, the second passage I have underlined in the citation of [134] of the Reasons is dealing with the question of repeated or continued renunciation through silence. The suggestion that the tribunal was not dealing with the issue is frankly hopeless. Mr Bright suggested that the reference to it being a strong thing to hold that a fresh anticipatory breach was committed by silence was an indication that the tribunal did not have the authorities of Safehaven and Latvian Shipping in mind. Quite apart from the fact that the tribunal had just cited the cases in a footnote, which makes it inherently unlikely that it had forgotten them in a few lines of the Reasons, the concept of it being a strong thing to hold that there was renunciation by silence chimes with what Rix LJ said in the latter case at [96]:

Furthermore, Mr Bright’s submission that, because the tribunal referred to a fresh anticipatory breach committed by silence, it cannot have had in mind the question of continuing renunciation, is another example of a casuistic semantic distinction. Given that one is focusing on renunciation by pregnant silence, it seems to me one is necessarily dealing with repeated or continuing silence, not strictly speaking a “fresh” renunciation, in the sense of an entirely new renunciation. The word “fresh” is perhaps loose terminology, but the tribunal must be referring to repeated or continuing renunciation. Which it is does not matter: the critical question is whether the silence amounted to a renunciation, which is why the “issue” is really whether there was renunciation by silence after the claimants affirmed the contracts.

Mr Bright also sought to suggest that the finding of fact which the tribunal then made: “But in the present case, we think that matters had been left in a more fluid state by the Buyers’ indications of what their intentions were ...and by the long period in which they failed to come to a decision. The breach had been waived by early December, waived again if it had been repeated by late December; and there was nothing in the parties’ dealings in January 2008 which could be taken as having revived it”, somehow demonstrated that the tribunal had not had the “continuing renunciation” point in mind or had not addressed the right question. In my judgment, there are a number of answers to that criticism.

First, despite what Mr Bright submitted, it is quite clear that the tribunal was addressing why it was that, on the facts of this case, there was no renunciation after the claimants had affirmed the contracts. The reference to revival is to revival of the right to terminate, so there is nothing in the suggestion that that reference indicates that the tribunal had applied the wrong test in law. Second, taking [134] of the Reasons as a whole and applying a broad test of reasonable construction, it seems to me impossible to say that the tribunal has applied the wrong test in law. What the claimants’ submission amounts to is that, because the tribunal reached a conclusion on the facts which the claimants do not like, the tribunal must have applied the wrong legal test.

In my judgment, that submission is misconceived. As I have said, it is impossible to say that the tribunal applied the wrong test in law as to what constitutes a renunciation. In that context, as I have said, whether it is a continuing renunciation or a repeated renunciation is irrelevant: it is not suggested that a different legal test applies to the former but not the latter. Thereafter, whether there was a renunciation is a question of fact for the tribunal. This is demonstrated by the most recent authority in this area, decided after the Award was published, the decision of Teare J in White Rosebay Shipping SA v Hong Kong Chain Glory Shipping Limited [2013] EWHC 1355 (Comm) upon which Mr Bright placed particular reliance.

That was a case of an appeal under section 69 of the Arbitration Act 1996 in which one of the alleged errors of law was that the tribunal had concluded that the owners could not terminate the charterparty because they had affirmed it in circumstances where the charterers were continuing to renounce the charterparty. The owners relied on the principle derived from Safehaven and Latvian Shipping, both of which the learned judge cited before saying at [50] and [51] of the judgment:

The learned judge went on to conclude at [53] that, in that particular case, the tribunal had erred in law in considering that it necessarily followed that a termination following affirmation was a repudiatory breach because they had failed to consider that, if the renunciation continued after affirmation, the owners could lawfully terminate for that continued renunciation. In my judgment, the same criticism cannot be levelled against the tribunal in the present case. As I have held, contrary to Mr Bright’s submissions, it has dealt with the issue of continuing renunciation if, contrary to my primary view, it is an issue as opposed to one argument within an issue. There is no basis for any suggestion that the tribunal has committed an error of law, but even if there were that would not avail the claimants, since the contracts expressly excluded the right to appeal from an arbitration Award to the courts.

Again, contrary to Mr Bright’s submissions, I consider that the tribunal has carefully considered in [134] of the Reasons whether there was continued or repeated renunciation by the defendants after the claimants’ affirmation and has concluded that there was not, essentially because, in the period of three months from October 2007 to January 2008, there was not “mere silence” but constant communications, which meant that it was unclear what the claimants’ intentions were (hence the reference to the “more fluid state”), so that there was no duty to speak placed upon the defendants. It may be that that conclusion is not as clearly spelt out by the tribunal as it might be, but reading the whole of the Reasons, that is the conclusion which emerges and it is a perfectly reasonable and explicable one.

However, even if it were not and the tribunal’s conclusion in [134] could be said to be surprising or unusual or even wrong, it is a conclusion of fact, which is not susceptible to review by the court whether under section 68 or otherwise. There is no merit in Mr Bright’s suggestion that in some way that conclusion is so perverse that the tribunal cannot have dealt with the issue. As I have said, the tribunal clearly has dealt with the issue of continuing or repeated renunciation. Once it is recognised that it has dealt with the issue, there is no scope for the application of section 68(2)(d). As Mr Dunning correctly put it, once it is recognised that the tribunal has “dealt with” the issue, the sub-section does not involve some qualitative assessment of how the tribunal dealt with it. Provided the tribunal has dealt with it, it does not matter whether it has done so well, badly or indifferently.

It is wrong in principle to look at the quality of the reasoning if the tribunal has dealt with the issue. This emerges clearly from the judgment of Thomas J (as he then was) in Hussman (Europe) Ltd v Al Ameen Development & Trade Co [2000] 2 Lloyd’s Rep 83 at [56]:

As Mr Dunning pointed out that approach has been followed by other judges of this Court on a number of occasions, for example by Cresswell J in The Petro Ranger [2001] 2 Lloyd’s Rep 348 who said at 351 col. 2: “there is a distinction between criticism of the reasoning and the failure to deal with an issue”. Most recently, Andrew Smith J makes the same point at [27] of Petrochemical Industries v Dow Chemical quoted at [8] above. On analysis, the real complaint of the claimants in the present case is not that the tribunal has failed to deal with the issue or argument about continued renunciation, but that it has rejected the argument on the facts. That finding of fact by the tribunal is not susceptible to review by the court.

The extent to which this application is an impermissible attempt to go behind the tribunal’s findings or fact is highlighted by the second part of the application, which concerns the tribunal’s findings that the claimants had not established their case that, but for the defendants’ renunciatory breach, the claimants would have “flipped” the contracts, that is, sold the shipbuilding contracts to third parties at a profit. Of course, since the tribunal found that it was the claimants who had repudiated the contract, this point was academic and, in the light of my conclusion on the first part of the application, it remains academic. It follows that, even if there were anything in the point, the application would be bound to fail, because the claimants cannot demonstrate that it would make any difference to the overall decision of the tribunal and, therefore, cannot show that any serious irregularity has caused or will cause substantial injustice to the claimant.

Nonetheless, since the point was argued, I will deal with it briefly. The relevant part of the tribunal’s Reasons really begins at [177] where the tribunal sets out an unexceptionable statement as to the need for the claimants to show on a balance of probabilities that they would in fact have flipped the vessels:

The tribunal then goes on at [178] to [180] to set out its findings as to the facts in some detail, referring to the evidence given by Mr Paul Coronis of the claimants and then finding at [180]:

The tribunal then reached its conclusion that this head of claim failed on the basis that the claimants could not satisfy the burden of proof, in these terms at [181]:

Mr Bright complained about the fact that the tribunal had rejected the argument that the claimants would have flipped the ships (which it had accepted in principle) because the claimants had not proved that they would in fact have flipped the ships. He complained in particular about the finding: “there was no evidence of the Buyers being involved in any market activity whatsoever”, suggesting this overlooked Mr Coronis’ evidence that, if the contracts had proceeded, he would have sold the ships and that he had marketed the ships to various brokers after 7 November 2007, but had been hampered by the inability to give any prospective buyers firm delivery dates because of the defendants’ attitude. The claimants also referred to evidence of a broker they had called who confirmed he had been asked to find buyers and had contacted two buyers. In their evidence in support of this application, the claimants suggest that the tribunal has forgotten or overlooked this evidence.

In fact, as I read the tribunal’s finding in [180], the point it was making was not that Mr Coronis did not try to sell the ships or would have done so if he could, but that there were no takers, which is what the tribunal meant by no “market activity”. The claimants cannot point to any evidence of a firm buyer for the ships. In those circumstances, the tribunal’s conclusion on the facts that this head of claim failed is not only understandable, but correct.

However, Mr Dunning correctly points out that it is beside the point whether the tribunal’s conclusion on the evidence is correct. The claimants cannot seriously begin to suggest that the tribunal has not dealt with an issue and what this part of the application really is, is a scarcely veiled attempt to challenge the findings of fact of the tribunal which the claimants do not like. Even if the tribunal had overlooked a particular piece of evidence in reaching its findings of fact, that is not susceptible to challenge under section 68 or otherwise: see per Colman J in World Trade Corporation v C Czarnikow Sugar Ltd [2005] 1 Lloyd’s Rep 422 at [45]:

It is clearly not appropriate to use an application under section 68 to challenge the findings of fact made by the tribunal. If it were otherwise every disappointed party could say it had been treated unfairly by pointing to some piece of evidence in its favour which was not referred to in the Reasons or not given the weight it feels it should have been. That is precisely the situation in which the Court should not intervene. Matters of fact and evaluation of the evidence are for the arbitrators.

It follows that the application under section 68 of the Arbitration Act 1996 is misconceived and must be dismissed. In the circumstances, it is not necessary to consider the defendants’ alternative argument that the claimants should be precluded from making the application because they had failed to exhaust all available arbitral processes of appeal or review under section 70(2) of the Act, save to say that in circumstances where a party considers the tribunal has not dealt with an issue, it must make sense to raise the matter with the tribunal first, for the tribunal if appropriate to act pursuant to section 57, before making an application to the court. It may be that, in the particular circumstances of this case, the claimants could justify their failure to raise the matter with the tribunal, but as I say, since the application is dismissed anyway, it is not necessary to explore that question further.