UMS Holding Ltd & Ors v Great Station Properties SA & Anor

Permission to appeal a section 68 arbitration challenge should be refused where the proposed appeal has no real prospect of success and no compelling reason justifies further delay and expense. The court cannot re-evaluate the evidence to decide whether an arbitral tribunal overlooked material, and a wrong conclusion is not itself a serious irregularity. An award referred to in open court may enter the public domain, but that does not necessarily make it freely usable. The court retains an inherent jurisdiction to regulate consequences of its own order and may restrict use of the award. Contractual confidentiality under Article 30 of the LCIA Rules 1998 ceases, on its proper construction, when the award is otherwise in the public domain.

The judgment concerned three ancillary matters arising after the court’s judgment in a section 68 challenge to an arbitration award, identified as [2017] EWHC 2398 (Comm). The arbitration respondents sought permission to appeal. The claimants also sought interim payments on account of costs and opposed an order regulating use of the award after the section 68 hearing had taken place in public.

The issues were whether the proposed appeal had a real prospect of success or some other compelling reason, what interim costs payment was reasonable, whether the award had entered the public domain, and whether it could be used without restriction despite Article 30 of the LCIA Rules 1998.

1. Permission to appeal. Permission was refused. The court held that the difference of opinion attributed to Toulson J and Akenhead J concerned obiter dicta, not conflicting decisions. In any event, the court’s prior reasoning established that deciding whether the tribunal had overlooked evidence would require the court to consider and evaluate the evidence afresh, which was impermissible in a section 68 challenge. That proposed exercise offered no real prospect of success and no compelling reason for an appeal. The statutory purpose of avoiding unnecessary delay and expense in arbitration supported that conclusion.
2. The further grounds also failed. The tribunal’s reference to the board minutes and its reasoning showed that the evidence was in mind. The tribunal had decided the issue reasonably understood from the closing submissions, and had in any event implicitly rejected the suggested case about the purpose of the resignations. A manifestly illogical conclusion was not a serious irregularity where the complaint was, in substance, that the tribunal had reached the wrong conclusion. The reasoning in Metropolitan Property v Amore Investments [2008] EWHC 2925 (Ch) did not provide a realistic basis for permission in light of higher authority.
3. Costs. The court made a broad-brush assessment. It treated the claimants’ costs schedule as approximately £600,000, awarded 65 per cent of that figure, allowed for existing security of £285,000, and ordered a further interim payment of £100,000, together with £5,000 for the section 66 application.
4. Confidentiality. The award entered the public domain because the section 68 challenge was heard in public and the award was read and discussed in court. Applying NAB v Serco Ltd [2014] EWHC 1225 (QB), the court nevertheless held that public-domain status did not make every use appropriate. Article 30 of the LCIA Rules 1998 was construed as applying while awards and arbitration materials remained outside the public domain. The court therefore retained an inherent jurisdiction to regulate use of an award made public by its own order, analogous to the power under CPR 31.22(2), and restricted use of the award to the proceedings and the purposes permitted by Article 30. A specific further use could be put to the court for approval.

First-instance ancillary rulings arising from the court’s earlier section 68 judgment, [2017] EWHC 2398 (Comm). Permission to appeal was refused.