Cantrell & Anor v Wright & Fuller Ltd

An appeal under the Arbitration Act 1996, section 69, is confined to the questions of law defined for the court, but the judge is not confined to the parties’ submissions. The judge may consider all material before the arbitrator and the court, and may make additional factual findings needed to answer those questions, provided they do not contradict the arbitrator’s findings.

Section 69(8) ordinarily requires permission for an appeal to the Court of Appeal on the merits. The court may intervene without that permission only in an exceptional case involving serious procedural unfairness akin to judicial misconduct. Additional reasons or findings, while answering the same broadly framed questions on the available material, do not thereby establish excess of jurisdiction.

Wright & Fuller Ltd claimed about £75,000 in arbitration for work at a nursing home, relying on a final certificate under clause 30 of the JCT conditions. The arbitrator answered preliminary issues concerning clauses 30.8 and 30.9 in its favour.

The respondents to the arbitration, acting in person, appealed under section 69 of the Arbitration Act 1996. The High Court judge answered both issues in their favour, varied the award and refused permission to appeal on the ground that his order had been made in excess of jurisdiction. Wright & Fuller renewed its application in the Court of Appeal, alleging that the judge had relied on unargued reasons and new factual findings.

The central issue was whether that approach amounted to serious procedural unfairness or an excess of the statutory jurisdiction.

Lord Justice Tuckey gave the first judgment and Lord Justice Mummery agreed. The renewed application for permission to appeal was refused.

1. Section 69 of the Arbitration Act 1996 gives the court jurisdiction to hear an appeal on a question of law arising out of an arbitration award. Where the issues are broadly defined, the judge must answer the same questions of law that were put to the arbitrator.
2. The judge is not confined to the parties’ submissions. The judge may consider all material before the arbitrator and all material before the court by agreement. Where no evidence was called before the arbitrator, the judge is in the same position as the arbitrator and may make additional factual findings necessary to answer the legal questions, provided they do not contradict the arbitrator’s findings.
3. The judge’s approach to construing the JCT conditions and the disputed certificate was sound. A court determining the questions of law may undertake its own construction of all relevant contractual provisions and documents, read the conditions as a whole and take account of the relevant factual matrix. It need not rely on a party’s failure to refer to a relevant condition.
4. Section 69(8) ordinarily prevents an appeal to the Court of Appeal on the merits without the first-instance judge’s permission. The permission criteria are reflected in Henry Boot Construction v Malmaison Hotel (Manchester) Ltd [2001] QB 388.
5. Following North Range Shipping Corpn v Seatrans Shipping Corpn, ‘The Western Triumph’ [2002] 1WLR 2397; [2002] EWCA Civ 405, the Court of Appeal has jurisdiction in an exceptional case involving serious procedural unfairness akin to misconduct by the judge. The route to intervention is Article 6 of the Convention. This was not such a case: the judge answered the same questions, relied on material properly before him, made no findings contrary to the arbitrator and had not denied the applicant a fair opportunity to address the merits.

The judge therefore had not acted in excess of jurisdiction, and permission to appeal was refused.

1. Court of Appeal (Civil Division) — renewed application for permission to appeal refused.
2. High Court, Queen’s Bench Division (Technology and Construction Court) — His Honour Judge Anthony Thornton QC answered the two section 69 questions in favour of the respondents, varied the arbitration award and refused permission to appeal on the merits on jurisdictional grounds.