Kaneria v The English & Wales Cricket Board Ltd

Under section 68(2)(b) of the Arbitration Act 1996, an award may be challenged for excess of power where the tribunal purports to exercise a power it does not possess. The provision does not permit review of the erroneous exercise of an available power, including a mere error of law or fact.

Where disciplinary regulations govern procedure, the applicable regulations are ordinarily those in force when proceedings are brought. A costs order is distinct from a disciplinary penalty where the governing regulations treat costs as indemnification rather than punishment. Section 69 does not permit appeals on factual findings or discretionary sanctions unless the statutory permission requirements are met.

The claimant, a professional cricketer, challenged an arbitral decision upholding a life ban from cricket and substantial costs orders imposed by the ECB’s disciplinary bodies.

He applied under sections 68 and 69 of the Arbitration Act 1996. He alleged that the arbitral panel had exceeded its powers by applying the 2012 disciplinary regulations, imposing the costs orders and imposing a life ban. He also sought permission to appeal on questions concerning proportionality, contractual agreement to the regulations, lex mitior and the findings of guilt.

The central issues were whether the panel had exceeded its powers, whether any proposed appeal raised an arguable question of law satisfying section 69, and whether the panel’s findings were matters of law or fact.

1. Applications dismissed. The claimant established neither serious irregularity under section 68 nor a qualifying question of law under section 69.
2. The charges concerned breaches of the 2009 ECB Directives, but the 2009 and 2012 disciplinary regulations governed the procedure for bringing and conducting proceedings. The relevant regulations were therefore those in force when proceedings were instituted in 2012. The panel consequently had power to make the costs orders.
3. The 2009 Directive gave the disciplinary bodies an absolute discretion to impose penalties within their general powers, including suspension for life. A challenge alleging that the discretion had been exercised disproportionately concerned the erroneous exercise of an available power, not an excess of power within section 68(2)(b). The principle in Lesotho Highlands Development Authority v Impregilo SpA and others [2005] UKHL 43; [2006] 1 AC 221 applied.
4. The proposed appeal concerning the life ban did not disclose an obviously wrong decision or a question of law of general public importance. The sanction depended on the particular facts and the specialist panel’s discretionary assessment. It was also not just and proper for the court to substitute its assessment for that of the specialist cricketing tribunal.
5. Lex mitior did not assist the claimant in relation to costs. On the proper construction of the 2012 regulations, penalties were punishments, whereas costs indemnified expenditure incurred in the proceedings. Costs were therefore not a sanction or penalty for this purpose. The decision in FK Pobeda and others v UEFA [CAS 2009/A/1920] provided no assistance because the issue depended on the applicable ECB regulations.
6. The challenge to the findings of guilt concerned evidence and findings of fact. Even an allegedly unsupported or evidentially flawed finding would be an error of fact, not a question of law within section 69.

not stated in the judgment.