Fearn v Swindon Borough Council

Permission to appeal under CPR 52.13 requires either an important point of principle or practice, or another compelling reason. A mere arguable error of law, a disagreement between the decision-maker and the County Court, or the absence of a second legally qualified tribunal is insufficient. A compelling reason normally requires a very high prospect of success and a serious risk of injustice if permission is refused.

When reviewing an arbitration award for error of law on its face, the court must examine the reasons given by the arbitrator and treat them as the reasons for the decision. If an error is established, the court must decide case by case whether to remit the matter or vary the award. There is no general rule requiring one course rather than the other.

The tenant held an agricultural tenancy governed by the Agricultural Holdings Act 1986. Following a rent arbitration, the parties entered into a deed settling claims arising from the arbitration and related proceedings. The landlord later served notices connected with rent arrears and the tenant challenged the resulting arbitrator’s award.

The County Court set the award aside under paragraph 27(2) of Schedule 11 to the Act, holding that the arbitrator had made an error of law on the face of the award. The landlord sought permission to appeal. Permission had already been granted below, but the landlord proceeded on the basis that CPR 52.13 applied. The central issues were whether the appeal raised an important point of principle or practice, or whether there was another compelling reason for the Court of Appeal to hear it.

1. Application dismissed. Chadwick LJ, with whom Arden LJ agreed, held that the requirements of CPR 52.13 were not satisfied.
2. The question whether paragraph 27 of Schedule 11 constituted an appellate jurisdiction for CPR 52.13 purposes was not decided. It was inappropriate to determine that issue without the tenant being before the court. The application was considered on the basis elected by the landlord, namely that CPR 52.13 applied.
3. The proposed appeal did not raise an important point of principle or practice. Where an arbitrator gives reasons, the court deciding whether there is an error of law on the face of the award must examine those reasons. It must assume that they are the reasons, and only the reasons, which led to the arbitrator’s conclusion. The court cannot rely on undisclosed reasons known only to the arbitrator.
4. Under paragraph 28(2) of Schedule 11, once an error of law is found, the court must decide whether to remit the award or vary it. The appropriate course depends on the circumstances of each case. Remission may be appropriate where further factual findings are needed, but there is no general principle that remission must always be ordered.
5. A compelling reason under CPR 52.13 requires more than a realistic prospect of success. In this case it would require such a high prospect of success that refusal would create a serious risk of injustice. The landlord’s arguments did not meet that threshold.

• County Court: His Honour Judge Weeks QC set aside the arbitrator’s award dated 15 October 1999 under paragraph 27(2) of Schedule 11 to the Agricultural Holdings Act 1986.
• Court of Appeal: Lady Justice Arden refused permission on paper. On renewal, the Court of Appeal dismissed the application.