In WSB v FOL [2022] EWHC 586 (Comm) Mr Justice Calver gave judgment containing authoritative guidance concerning applications under ss.67-69 of the Arbitration Act 1996 which are at first dealt with on paper and in relation to which an oral hearing is then sought. He refused the application of WSB to set aside an Order of Mrs Justice Moulder which had on paper dismissed WSB’s challenge to a JAMS arbitration award under s.67 and s.68 and he further refused WSB’s permission to appeal under s.69. Calver J held that where a Judge has refused permission to appeal under s.69 on paper that determination is final and cannot be subject to a rehearing: see [10]-[14]. Calver J further held that it was important that challenges to awards are resolved without protracted litigation and unnecessary delay or expense, citing Males J (as he then was) in Midnight Marine v Thomas Miller [2018] EWHC 3481: see [4].
Calver J suggested that it would be beneficial for the Rules Committee to make the above conclusion, concerning s.69 determinations on paper being final, express in the CPR or Practice Direction. The Judge also re-stated important guidance at paragraph [6] concerning his suggested approach, again based on Midnight Marine, as to the procedure which should be adopted in respect of applications to set aside determinations of the Court on paper (e.g. in relation to s.67 or s.68) which “bears repeating and re-emphasising so far as practitioners are concerned”. In particular, if the oral hearing becomes effectively a full hearing of the s.68 application preceded by a further round of submissions and evidence, the objective of weeding out hopeless applications at an early stage by a prompt and economical procedure will have been frustrated. The procedure should be short, typically no more than 30 minutes; they should, where possible, be listed before the judge who has dismissed the application without a hearing; there should be no need for further written submissions in addition to those already provided by both parties save for the applicant to explain succinctly what is said to be wrong with the judge’s reasons for dismissing the application without a hearing; and, bearing in mind the limited nature of the issue, i.e. whether the claim has a real prospect of success, and that respondents will already have made submissions on the point in writing, in general respondents should not attend or, at any rate, should not recover their costs if they do.
The guidance was given in the context of a case where FOL had won on all substantive points and costs in a JAMS arbitration, including that it should be returned the Collateral advanced under a loan agreement in circumstances where the loan was never advanced. WSB sought to challenge the award under s.67, s.68 and s.69. Such challenges now stand finally dismissed.
The parties names were anonymised in this judgment, a copy of which can be found here.
Jeremy Brier appeared for the Defendant (FOL) instructed by Michael Batty of Greene & Greene.
