BLCT (13096) Ltd. v J Sainsbury Plc

Article 6 does not ordinarily require an oral hearing of an application for permission to appeal against an arbitral award. The court must examine the nature of the application. A paper determination of a question of law will be fair unless exceptional circumstances require oral argument.

Under section 69(5) of the Arbitration Act 1996, the paper determination is final unless the court decides beforehand that a hearing is required. It cannot subsequently be renewed orally. Statutory restrictions upon appeals from consensual arbitration do not generally infringe Article 6. The Court of Appeal nevertheless retains a residual jurisdiction to remedy unfairness in the process by which a section 69 decision was reached.

BLCT, the landlord of a food superstore, sought permission under section 69 of the Arbitration Act 1996 to appeal an arbitrator’s rent-review award. The proposed appeal concerned whether a premium paid in a comparable letting should have been converted into an equivalent rent.

Pumfrey J refused permission on the papers and subsequently declined to hold an oral reconsideration. BLCT applied to the Court of Appeal for permission to challenge that refusal. Its remaining ground alleged that sections 69(5) and 69(6), by preventing an oral renewal and restricting further appeal, were incompatible with article 6(1) of the European Convention on Human Rights.

The central issues were whether the Court of Appeal possessed jurisdiction to intervene, whether article 6 required an oral hearing, and whether a section 69(5) paper decision could be reconsidered orally.

1. Permission to appeal was refused. Arden LJ held that the proposed appeal had no real prospect of success. Longmore LJ agreed.

2. The Court of Appeal retains a residual jurisdiction, notwithstanding section 69(6) of the Arbitration Act 1996, to intervene where the process by which a section 69 decision was reached was unfair. That jurisdiction ensures that the determination complies with article 6(1) and constitutes a fair hearing. The court followed North Range Shipping Ltd v Seatrans Shipping Corporation [2002] 1 WLR 2397.

3. Section 69(5) requires the court to determine an application for permission without a hearing unless it positively decides that a hearing is required. The statutory language does not provide for a provisional paper decision followed by oral reconsideration. Once the application has been determined on the papers, it is too late to request an oral hearing. CPR 52.3(4) does not apply to such a decision.

4. Article 6 does not require an oral hearing in every case unless exceptional circumstances justify dispensing with one. Whether oral argument is necessary depends upon the nature of the application and the proceedings viewed as a whole. The parties had chosen arbitration and had received a full hearing before an independent tribunal. Their agreement to arbitrate waived the entitlement to a public hearing inherent in article 6.

5. An application under section 69 concerns a question of law based upon the arbitrator’s factual findings. Ordinarily, therefore, article 6 does not require an oral hearing unless exceptional circumstances exist. No issue of credibility or disputed fact arose here. The proposed point, although complex, had been fully identified in the written application, witness statement and skeleton arguments.

6. The Master’s indication that an adverse paper decision could be renewed orally, and the ambiguous form of his order, gave rise to a reasonable expectation of a hearing. They did not, however, affect any step taken by BLCT or the eventual decision. Even had Pumfrey J known of those circumstances, he would reasonably have maintained that oral argument was unnecessary.

7. The restrictions on appeal reflected the statutory objectives of resolving arbitral disputes fairly and without unnecessary delay or expense, respecting party autonomy, and limiting court intervention. Section 69(6) was not incompatible with article 6. Any violation of the right to a fair trial could instead be addressed through the Court of Appeal’s residual jurisdiction.

1. Court of Appeal (Civil Division): The court unanimously refused BLCT permission to appeal, holding that the proposed challenge had no real prospect of success.

2. High Court, Chancery Division: Pumfrey J refused permission under section 69 of the Arbitration Act 1996 on the papers. He subsequently declined to provide an oral reconsideration and refused permission for a further appeal.

3. Arbitration: The arbitrator determined the rent review in Sainsbury’s favour on the disputed treatment of a premium paid under a comparable letting.