Railtrack Plc (In Railway Administration) v Guinness Ltd.

An appeal from a Lands Tribunal exercising its arbitration jurisdiction is ordinarily governed by the Tribunal’s appeal procedure and CPR rule 52, rather than the special permission regime in section 69 of the Arbitration Act 1996. Permission to appeal on a point of law does not permit a general review of detailed valuation evidence or calculations. Intervention may be justified where the Tribunal proceeded without evidence or failed to consider the whole of the evidence. Allegations of unfairness should generally be raised promptly with the Tribunal, which may then permit further representations or clarify its decision. Where a proposed ground requires detailed examination but the court remains concerned about its analysis, permission may be adjourned to the substantive appeal, with directions controlling further evidence and documentation.

Railtrack and London Underground referred to the Lands Tribunal a dispute with Guinness Ltd concerning the value of railway air rights required for an access road. After a lengthy valuation hearing, the Tribunal valued the rights at £5 million and later determined costs.

Railtrack sought permission to appeal on four grounds, concerning the assumed vendor, deductions for profit and risk, an English Partnerships loan, and an SRB grant. Permission had initially been granted on the first ground and refused on the others. On a renewed inter partes application, Guinness opposed permission on all grounds, including withdrawal of the permission already granted. The central issues were whether the proposed grounds raised questions of law suitable for appeal and how the court should manage the disputed valuation material.

1. Disposition. Permission to appeal on ground 1 was maintained. Permission was refused on grounds 3 and 4. The application on ground 2 was adjourned to be heard with the substantive appeal. Costs were reserved.

2. The arbitration was governed by the ordinary Lands Tribunal appeal procedure. Permission was therefore required under the regime introduced by the Courts and Legal Services Act 1990. The appeal took the form of an ordinary appeal on a point of law under CPR rule 52, pursuant to section 3(4) of the Lands Tribunal Act 1949, as amended by the Civil Procedure (Modification of Enactment) Order 2000. The special rules in section 69 of the Arbitration Act 1996 did not apply.

3. Ground 1 raised an arguable issue concerning the assumed vendor and the principle of reality. The court would not withdraw permission already granted absent exceptional circumstances. Ground 4 was academic because the Tribunal had made full allowance for the SRB grant. Ground 3 concerned the assessment of competing evidence about the English Partnerships loan and disclosed no realistic error of law, perversity, absence of evidence or failure to give reasons.

4. An appeal on law does not ordinarily justify a detailed review of valuation calculations, raw evidence or transcripts. The relevant material will normally be contained in the Tribunal’s decision. Intervention may nevertheless be justified where the Tribunal proceeded on no evidence or failed to take account of the whole of the evidence, as illustrated by Aslam v South Beds DC and Tersons Ltd v Stevenage DC.

5. The complaint that the profit and risk deductions involved unfairness or double counting required further examination. The appellants had sought clarification under section 57(3) of the Arbitration Act 1996, but had not then complained that they lacked an opportunity to make representations. The procedural issue remained suitable for consideration with the substantive appeal. The parties were directed to prepare, if possible jointly, a simplified human-produced comparative table of the valuation calculations, with no further evidence or transcript extracts without leave.

• Court of Appeal (Civil Division): On a renewed application for permission to appeal from the Lands Tribunal, permission was maintained on ground 1, refused on grounds 3 and 4, and adjourned on ground 2 to be heard with the substantive appeal.