Fehn Schiffahrts GmbH & Co KG v Romani SPA

Where an arbitration award is remitted, remission is confined to the issue requiring reconsideration. It is not an opportunity to reopen an alternative basis that the tribunal has already considered, including through a clarification of its award. A party succeeding in an appeal against an award which is not upheld is ordinarily the successful party for the appeal’s costs, even though the eventual outcome after remission remains unknown. Permission to appeal under section 69(8) of the Arbitration Act 1996 requires general public importance or another special reason; disagreement with the judgment does not itself constitute a special reason.

The owners appealed against an arbitration award concerning the charterers’ title to sue and whether loss had been suffered. The court had previously concluded that the tribunal’s decision was based on an assignment, and had remitted the award for reconsideration of the legal effect of that basis.

The present judgment determined the scope of remission, the costs of the appeal, the amount of costs on summary assessment, and the charterers’ application for permission to appeal. The central questions were whether the charterparty basis could be reopened, who was the successful party, and whether the statutory threshold for permission was met.

1. Remission. The award was remitted only for reconsideration of the tribunal’s finding that the charterers had title to sue under the assignment, in light of the court’s determination that an assignee could not recover more from the debtor than the assignor could have recovered. The alternative argument based on the charterparty had already been raised through clarification of the award. Taking the award and clarification together, it had been determined and could not be reopened on remission.
2. The court could not uphold the award on the alternative basis that the charterers suffered loss and were entitled to recover under the charterparty. Remission did not provide an opportunity to reopen matters previously determined by the tribunal and the court.
3. Costs. The owners were the successful party. They had succeeded in establishing an error of law on appeal, and the award had not been upheld. The outcome of the remission did not determine the costs of the appeal. The owners were awarded their costs.
4. Summary assessment. Reasonableness and proportionality were assessed having regard to the relevant rules, including the complexity of the matter and sums at issue. Only one instructing solicitor could properly be charged for attendance at the original hearing. Two counsel were permissible because there was no duplication. An apparent error in counsel’s fee was deducted, while additional work generated by correspondence and related matters was taken into account. Costs were summarily assessed at £32,000.
5. Permission to appeal. Under section 69(8) of the Arbitration Act 1996, permission could be granted only where the decision was of general public importance or there was some other special reason for the Court of Appeal to consider it. The issue was case-specific and the charterers’ disagreement with the court’s conclusion did not amount to a special reason. Permission was refused.

The judgment states that the owners brought an appeal against the arbitration award. The award was not upheld and was remitted to the tribunal for limited reconsideration. The judgment does not provide the citation of the earlier judgment or the arbitration award.