White Young Green Consulting v Brooke House Sixth Form College

Leave to appeal an arbitral award under Arbitration Act 1996, section 69, requires an identifiable question of law which the tribunal was asked to determine. The court must distinguish the ascertainment of law from the application of that law to facts. Findings of fact do not themselves create questions of law. Where the tribunal’s decision is challenged under section 69(3)(c)(i), the decision must be obviously wrong on the award’s findings of fact. Use of a standard-form contract does not, without more, establish general public importance under section 69(3)(c)(ii). Leave was refused where the arbitrator’s conclusions were factual, procedural, contractual, or not obviously wrong.

White Young Green Consulting Limited sought leave to appeal under section 69(3) of the Arbitration Act 1996 against an interim award concerning its claim for additional consultancy fees. The arbitration arose from its appointment by Brooke House Sixth Form College for design and management consultancy services in connection with a construction project.

The arbitrator determined 15 preliminary issues. WYG challenged 11 of them, concerning implied terms, contractual phasing, variations, written authority, substantiation and particularisation of additional-fee claims. The central questions were whether the proposed appeals raised questions of law, whether the statutory threshold was met, and whether it was just and proper for the court to determine them.

1. Application refused. WYG did not obtain leave to appeal on any of the challenged preliminary issues.
2. Under section 69(3), the proposed question must be one which the tribunal was asked to determine and must be properly identified. The court must distinguish the arbitrator’s ascertainment of facts, ascertainment of law, and decision reached by applying the law to the facts. The third stage is not ordinarily a question of law. An error in applying law to facts falls outside section 69 unless it demonstrates that the arbitrator failed properly to determine the legal question.
3. The statutory test was whether the tribunal’s decision was obviously wrong. The use of commonly used standard-form conditions did not itself establish a question of general public importance under section 69(3)(c)(ii). The court considered that the alternative serious-doubt test would not have produced a different result.
4. On documents, the court followed the approach in Kershaw Mechanical Services v Kendrick Construction Ltd, namely that documents identified in the award may be considered where necessary to understand the contractual context, but additional material should be limited and properly justified.
5. Applying those principles, the arbitrator’s findings on implied terms, contractual phasing, variations, written authority and claim substantiation were factual or contractual applications and were not obviously wrong. The direction that contractual claims identify each change or variation and its consequences was principally procedural and did not preclude a global claim.
6. The “final and binding” clause was relevant to whether it was just and proper to grant leave, but did not determine the application. The application was dismissed in respect of all 11 issues.