Reasons for refusal of permission to appeal arbitration award

North Range Shipping Ltd v Seatrans Shipping Corporation (CA TLR 18 April)

There is no appeal from the refusal by a judge for permission to appeal an arbitration award on the merits, and s69(8) of the Arbitration Act 1996 precludes the judge himself giving permission to appeal from his refusal. However, the Court of Appeal has jurisdiction to entertain an appeal against a judge’s refusal to give leave on the basis of the inadequacy of the judge’s reasons for refusal. Under s6 of the Human Rights Act 1998 it is unlawful for a court to act incompatibly with a Human Rights Convention right, but a party’s right to complain of an unlawful judicial act is restricted by s9(1) of the 1988 Act to the exercise of a right of appeal. The court was required to give the applicant a right of appeal to enable it to complain that the process by which the judge reached his decision was unfair and contrary to article 6. To enable the court to exercise this discretion, when a judge refused leave to appeal, the applicant should at the very least be told which of the threshold tests contained in s69(3) of the Arbitration Act he had failed. If the question was not one of law, did not substantially affect the rights of one or more of the parties, or was not one which the tribunal was asked to determine, an adequate reason for the judge’s decision would in almost all cases have been given simply by identifying the test failed without the need to say more. However, when one came to whether the tribunal’s decision was obviously wrong or open to serious doubt, it was not possible to give an unqualified answer to the question of whether the judge needed to go further and explain in every case why the test had been failed. It would be enough for the judge to say ‘for the reasons given by the arbitrator’, otherwise it might be necessary to go further. But any further reasons need only to be brief so as to show the losing party why he had lost.