Patley Wood Farm Llp v Brake & Anor

On an application under Arbitration Act 1996, section 42, the court has a discretion whether to enforce a tribunal’s peremptory order. The application is not a rubber-stamping exercise, but the court should not rehear or review the tribunal’s underlying award. The fact that an award is under challenge is relevant but not decisive. Where the arbitral process has been exhausted, the order has been disobeyed, and enforcement remains necessary to progress an inevitable accounting exercise, the court may enforce the order.

The claimant applied under section 42 of the Arbitration Act 1996 to enforce a peremptory order made by the arbitrator in an LCIA arbitration concerning the dissolution and winding up of a partnership. The arbitrator had ordered the defendants to provide partnership financial records and authority enabling accountants to liaise with the appointed accountant.

The defendants argued that the arbitrator lacked jurisdiction over dissolution accounts, that the award was subject to substantial challenges, and that the application should be adjourned until those challenges were heard. The central issues were the respective scope of two arbitration clauses and whether enforcement should proceed pending the defendants’ challenges.

1. Application granted. The defendants had failed to comply with the arbitrator’s peremptory order and the requirements of section 42 were satisfied.
2. Section 42 confers a discretion. Enforcement is not automatic, but the court need not rehear or review the tribunal’s award. A pending challenge is relevant but not conclusive.
3. The court adopted the approach in Emmott v Michael Wilson & Partners Ltd [2009] EWHC 1, including consideration of whether enforcement was required to support the proper functioning of the arbitration.
4. The accountant’s jurisdiction under clause 9.4 concerned annual accounts. The general arbitration clause in clause 33 gave the arbitrator jurisdiction over dissolution accounts.
5. The claimant’s entitlement to access the partnership books and the inevitability of an accounting exercise meant that enforcement was not wasteful. The peremptory order was therefore enforced.

Not stated in the judgment.