Athletic Union of Constantinople v National Basketball Association (No 2)

Under Arbitration Act 1996 section 67(4), the same expression, the court, refers both to the court which made the section 67 decision and to the court whose leave is required for an appeal. Leave must therefore be obtained from the High Court or county court which decided the challenge to the award.

The Court of Appeal has no jurisdiction to grant that permission itself or to review that lower court’s refusal. The construction accords with the consistent statutory policy in sections 67 to 69 that an appeal from a court decision concerning an arbitration award requires the permission of that court.

The Athletic Union of Constantinople challenged an arbitral award under section 67 of the Arbitration Act 1996, alleging that the arbitrator lacked substantive jurisdiction. It also sought, in the alternative, leave to appeal on a point of law under section 69.

A Deputy Judge in the Commercial Court dismissed the section 67 application, refused permission to appeal that decision, and refused leave under section 69: [2002] Lloyd's Rep Vol 1 305. Rix LJ nevertheless granted permission for an appeal concerning section 67.

The respondents applied under CPR 52.9 to strike out the appellant’s notice and set aside that permission. The central issue was whether the Court of Appeal had jurisdiction to grant permission where the Commercial Court had refused it.

1. Application granted. Lord Phillips MR gave the reasons, with which Robert Walker LJ and Clarke LJ agreed. The Court set aside the permission granted by Rix LJ and granted the respondents’ application.

2. Section 67(4) of the Arbitration Act 1996 requires the leave of the court for an appeal from a section 67 decision. On its natural construction, that expression bears the same meaning on both occasions: it is the court which made the decision, here the Commercial Court.

3. The same expression should ordinarily bear the same meaning throughout sections 67, 68 and 69 unless the context requires otherwise. Neither the context nor section 105(1) displaced that conclusion. Instead, the provisions showed a consistent legislative policy that an appeal from a court decision concerning an award may proceed only with the permission of that court.

4. The Court applied the reasoning in Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [2001] 1 QB 308, concerning section 69(8). Its reasoning was capable of application to section 67(4). Accordingly, Rix LJ had no jurisdiction to grant permission, and the Court of Appeal had no power to entertain the proposed appeal.

5. The Court did not address the respondents’ alternative grounds. The first and second respondents’ costs were summarily assessed at £15,528.49 plus VAT. No costs were awarded to the third respondent.

• Court of Appeal: The respondents’ CPR 52.9 application was granted. Permission granted by Rix LJ was set aside because the Court of Appeal lacked jurisdiction to grant permission after the Commercial Court’s refusal: [2002] EWCA Civ 830.

• High Court, Commercial Court: The Deputy Judge dismissed the section 67 challenge to the award, refused permission to appeal that decision, and refused leave under section 69: [2002] Lloyd's Rep Vol 1 305.