Pendulum Shipping Inc v P U Aspiration PTE Ltd

Permission to appeal under section 69(6) of the Arbitration Act 1996 is generally unavailable as of right and should be granted only in exceptional cases. A challenge based on inadequate reasons will not succeed where the judge’s reasons sufficiently disclose that the statutory threshold was not met. A later change in guidance on giving reasons does not ordinarily justify extending time for an out-of-time appeal where the applicant knowingly chose not to raise the point earlier.

The dispute arose from an arbitration concerning the sale of a ship. The arbitrators found for the sellers. The buyers sought leave to appeal on a question concerning their alleged right to terminate before the contractual cancellation date.

Mr Justice Moore-Bick refused leave under section 69(3) of the Arbitration Act 1996, and later refused leave to appeal against that decision under section 69(6). The buyers renewed their application in the Court of Appeal, challenging the absence and adequacy of reasons, the fairness of the hearing, and the refusal to extend time. The central issues were whether the Court of Appeal had jurisdiction to entertain the challenge and whether permission or an extension of time should be granted.

1. Application dismissed. The renewed application for permission to appeal was refused.
2. Section 69(6) does not create a broad right of appeal from a first-instance refusal of leave under section 69(3). Any jurisdiction to intervene is exceptional, as recognised in Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [2001] QB 388.
3. The applicants were not entitled to an extension of time to challenge the first refusal of leave. Although North Range Shipping Ltd v Seatrans Shipping Corporation [2002] EWCA Civ 405 had superseded the earlier guidance in The Antaios [1985] AC 191 concerning reasons, the applicants had been aware of the point and had deliberately failed to raise it promptly. The later guidance was not intended to reopen decisions made under the earlier guidance.
4. The hearing was not unfair. The legal issue had been identified and argued in advance, counsel was able to address the point orally, and no adjournment had been requested.
5. The judge’s reasons were adequate. His statement that the arbitrators’ decision was not open to serious doubt necessarily conveyed that he considered their decision correct. The guidance in North Range Shipping did not impose an absolute requirement for fuller reasons in every case.
6. The argument based on Aden Refinery Co Ltd v Ugland Management Co Ltd [1987] QB 650 went to the general importance of the point, which the judge had accepted, rather than to the separate requirement that the arbitrators’ decision be open to serious doubt.

• Court of Appeal (Civil Division): renewed application for permission to appeal dismissed.
• High Court, Queen’s Bench Division, Commercial Court: Mr Justice Moore-Bick refused leave under section 69(3) of the Arbitration Act 1996 and later refused leave to appeal under section 69(6).