SABMILLER AFRICA V EAST AFRICAN BREWERIES

[2010] EWCA Civ 1564, Court of Appeal, Lord Justice Laws and Sir David Keene, 9 December 2009

Arbitration - Interim injunction - Power of Court of Appeal to give permission to appeal against grant of injunction - Whether parties had extended the court??A?A?s powers - Arbitration Act 1996, section 44 - Senior Courts Act 1981, section 37

In August 2009 Christopher Clarke J granted a temporary injunction under section 44 of the Arbitration Act 1996, restraining the defendant from carrying into effect various arrangements with a third party which were alleged to be in breach of agreements between the claimant and the defendant. The arbitration clause provided that either party could apply to a court of competent jurisdiction for interim relief. The learned judge refused permission to appeal. The defendant applied to the Court of Appeal for permission to appeal, despite the principle in section 44(7) of the 1996 Act which permits an appeal only with the permission of the trial judge. The defendant asserted that the arbitration clause had extended the court's powers to grant interim relief to those available generally under section 37 of the Senior Courts Act 1981, and accordingly the restriction on permission to appeal in section 44(7) did not apply to the present case. The Court of Appeal ruled that the parties had not agreed to extend section 44, so that section 44(7) applied and permission to appeal could be given only by the trial judge. The Court of Appeal left open the question whether it was possible as a matter of principle for the parties to oust section 44 and to replace it with the wider powers in section 37.