Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd

Under section 69(8) of the Arbitration Act 1996, an appeal from a court decision on an arbitration appeal requires leave from the High Court or county court which made that decision. The Court of Appeal cannot itself grant leave or review that court’s refusal. A refusal is not an appealable judgment or order under section 16 of the Supreme Court Act 1981.

The statutory restriction promotes finality, speed and economy in arbitration. In the supplementary judgment, the court held that section 55 of the Access to Justice Act 1999 did not impliedly repeal section 69(8). By majority, it further held that section 55 imposed no additional Court of Appeal permission requirement.

Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd concerned a building contract dispute referred to arbitration. The arbitrator made an interim award on the construction of clause 25 and an extension-of-time issue.

With the employer’s consent, the contractor challenged the award on a point of law under section 69(1) of the Arbitration Act 1996. Dyson J in the Technology and Construction Court upheld the arbitrator and refused leave to appeal. The contractor then sought to challenge that refusal in the Court of Appeal.

The central issue was whether, despite section 69(8), the Court of Appeal could grant leave or review the High Court’s refusal. A supplementary judgment also considered the effect of section 55 of the Access to Justice Act 1999 upon the arbitration appeal regime.

1. The appeal was dismissed for want of jurisdiction. Lord Justice Waller delivered the leading judgment, with Mrs Justice Arden and Lord Justice Swinton Thomas agreeing. Section 69(8) of the Arbitration Act 1996 required leave from “the court”, which section 105 defined as the High Court or county court. The subsection deliberately contrasted that court with the Court of Appeal. It therefore gave the Court of Appeal no power to grant leave after the High Court had refused it.

2. An entitlement to appeal must arise from statute; it is not presumed. Construing a statutory leave requirement as permitting appellate review of a refusal would defeat its purpose, because the reviewing court would have to decide whether the appeal should have been permitted. The refusal of leave was not a judgment or order appealable under section 16 of the Supreme Court Act 1981. The costs-related Scherer principle did not apply to this arbitration regime.

3. The construction also accorded with the policy of the Arbitration Act 1996: party-selected arbitration should achieve finality quickly and with limited expense. Section 18(1)(g) of the Supreme Court Act 1981, as amended, supported that conclusion.

4. In the supplementary judgment, all members held that section 55 of the Access to Justice Act 1999 had not impliedly repealed section 69(8). Waller LJ and Swinton Thomas LJ further held that section 55 had no additional effect on arbitration appeals under section 69(8): leave granted by the High Court or county court was not subject to a second permission application to the Court of Appeal. Arden J dissented on that latter, non-dispositive issue and considered that both permissions were required.

• Court of Appeal (Civil Division) — in [2000] EWCA Civ 175, held unanimously that it lacked jurisdiction to entertain a challenge to the High Court’s refusal of leave under section 69(8) of the Arbitration Act 1996. In the supplementary judgment, a majority held that section 55 of the Access to Justice Act 1999 did not add a second permission requirement.
• High Court, Technology and Construction Court (Dyson J) — upheld the arbitrator’s interim award and refused leave to appeal. No citation was stated in the judgment.
• Arbitration — Mr Bruce Mauleverer QC made an interim award concerning clause 25 of the building contract and an extension of time.