Sowden v Smyth-Tyrrell & Anor

A challenge under Arbitration Act 1996, section 68, is a long-stop remedy for extreme procedural failures, not an appeal on the merits. Failure to deal with an argument is distinct from failure to deal with an essential issue. An agricultural Case D notice remains valid where it correctly identifies the breach and remedial work but names the wrong contractual clause, if the error is objectively minor and could not mislead a reasonable tenant. A section 69 appeal requires satisfaction of the statutory permission conditions, including obvious error or a question of general public importance.

The tenant challenged an arbitrator’s award concerning two agricultural holdings. The award required removal of a concrete path and wall under a Case D notice, although the notice referred to clause 27 of the tenancy agreement and the arbitrator found the breach to be of clause 26.

The tenant applied under section 68 for relief based on failure to deal with issues, uncertainty and inadequate reasons, and sought permission under section 69 to appeal on the validity of the notice. The central issues were whether the notice was invalid, whether the arbitrator had failed to deal with waiver or estoppel, and whether the reasons for refusing to amend the remedy were inadequate.

1. The tenant’s application under section 68 was not time-barred. The application made to the arbitrator within the statutory period sufficiently sought correction, clarification or admission of the alleged irregularity. Exhaustion under section 70(2) depends on what the applicant actually asks the tribunal to do.

2. The Case D notice was valid. The statutory scheme required the tenant to be informed of the breach and the work required to remedy it; it did not itself require precise identification of the contractual clause. The wrong reference to clause 27, when clause 26 was adjacent and the breach and remedy were correctly stated, was a minor error which could not have misled a reasonable tenant. The approach in Official Solicitor v Thomas, [1986] 2 EGLR 1, and Dallhold Estates (UK) Pty Ltd v Lindsey Trading Properties Inc, [1994] 1 EGLR 93, supported assessment of the notice in the light of statutory purpose and the practical significance of the error.

3. Section 68(2)(d) concerns failure to deal with an essential issue, not failure to explain every argument or reach the correct answer. The waiver argument was legally hopeless in its wider form, peripheral, unsupported by evidence and not an essential issue. A representational or conventional estoppel could in principle prevent enforcement of an underlying liability if properly established, but no such case was materially advanced or supported here.

4. The arbitrator’s short statement that the remedial requirement was necessary and justified gave adequate reasons for refusing deletion under article 5(a) of the Agricultural Holdings (Arbitration on Notices) Order 1987. Even if any complaint amounted to an irregularity, it caused no substantial injustice.

5. Section 68 requires an irregularity within section 68(2) and substantial injustice. The test is whether the result was so far removed from what could reasonably be expected of the arbitral process that court intervention is justified. It is not a conventional appeal and does not permit relitigation of the merits.

6. Permission under section 69 was refused. The court had already determined that the Case D notice was valid and effective, so the tribunal’s decision was not obviously wrong. The question was not one of general public importance.

The tenant’s claims under sections 68 and 69 were dismissed.

First-instance decision on applications challenging an arbitral award under sections 68 and 69 of the Arbitration Act 1996. The judgment states that a separate application for permission to appeal an earlier procedural order was pending, but that order was not the subject of this judgment.