Maimann v Reyhanian

Relief from sanctions for a late application for permission to appeal requires careful consideration of promptness, the explanation for delay, responsibility for the default, its effects, and the strength of the proposed grounds. Solicitors’ inaction is generally treated as the party’s inaction. A tribunal may have power to order a party to do something even where the order concerns performance on land. The statutory exclusion concerning specific performance of a contract relating to land is directed to contracts involving the creation or transfer of an interest in land, not every contract requiring performance on land. At the enforcement stage, the court does not decide which party won the arbitration. That is a matter for the tribunal.

The dispute concerned restrictive covenants affecting boundary fencing between neighbouring freeholders. The parties referred their dispute to the Beth Din under a written arbitration agreement. The Beth Din ordered removal and replacement of the fence at the parties’ joint expense.

The High Court later permitted enforcement of the award as if it were a judgment and ordered the defendant to pay the claimant’s costs. The defendant did not seek relisting or permission to appeal within the prescribed period. His application for permission to appeal was filed about four months late. The central issues were whether relief from the time limit should be granted and whether the proposed grounds concerning the tribunal’s powers, enforcement, and costs had sufficient merit.

1. Permission and delay. The application for permission to appeal was out of time, so the court applied the checklist in CPR Part 3.9. The application was not made promptly. There was no good explanation for the delay: ignorance of the applicable time limits by the defendant’s former solicitors was not a satisfactory explanation, and further delay by the second solicitors was also unexplained. Although the default appeared to result from the legal representatives, in general the Civil Procedure Rules treat such inaction as inaction by the party.
2. Proposed challenge to the award. The court considered that the argument under sections 48(5)(a) and 48(5)(b) of the Arbitration Act 1996 faced formidable difficulties. The tribunal had power to order a party to do something. The reference to a contract relating to land concerned a contract involving the creation or transfer of an interest in land, rather than a contract which merely required performance on land. Further, specific performance is a remedy sought by one contracting party against another, whereas no contract existed between the parties, although they might both be bound in equity by restrictive covenants. The statutory exclusion was a default rule capable of enlargement by agreement under section 48(1). The court did not determine whether the parties’ agreement to apply Jewish law gave the tribunal the disputed powers.
3. Enforcement and costs. The court held that, when granting permission to enforce an award as a judgment, it is not the court’s function to decide which party won. That is the tribunal’s function, while the court’s role is to assist the arbitration process. The costs order was within the judge’s discretion, and no proper ground for interference was shown. Any dispute about the substantial costs bill was for detailed assessment, not for the permission application.
4. Disposition. The proposed grounds were not sufficiently strong to overcome the obstacles arising from the delay. Permission to appeal was refused. There was no order for costs.

1. Court of Appeal (Civil Division) — In [2006] EWCA Civ 98, the application for permission to appeal was refused. There was no order for costs.
2. High Court of Justice, Queen’s Bench Division, Commercial Court — Morrison J permitted enforcement of the Beth Din award as if it were a judgment and ordered the defendant to pay the claimant’s costs.