Kirby & Ors v Baker & Metson Ltd

Where a statutory appeal under section 69 of the Arbitration Act 1996 is subject to the Civil Procedure Rules 1998, the rules are modified only to the extent required by the statute. The requirement to seek permission to appeal from the lower court at the hearing remains applicable. A retrospective application made after judgment has been handed down, where the hearing was not adjourned, cannot be considered. The court has no power to grant permission retrospectively and no discretion to extend the time for seeking it. This approach promotes the finality and certainty that are particularly important in arbitration appeals.

The judgment concerned a procedural issue arising from the court’s earlier decision, which had allowed an appeal under section 69 of the Arbitration Act 1996. The defendant had not sought permission to appeal when the judgment was handed down on 7 October 2020 and had not sought an adjournment for that purpose. It later applied to the judge for permission after mistakenly applying to the Court of Appeal.

The central questions were whether section 69(8), read with CPR 52.1(4), displaced the requirement in CPR 52.3(2)(a) to seek permission at the hearing, whether the court retained jurisdiction after the subsequent order, and whether time for an appellant’s notice could be extended.

1. The court refused permission to appeal against the present decision. It also held that it had no power to grant retrospective permission to appeal from the earlier section 69 decision.

2. Section 69(8) of the Arbitration Act 1996, in combination with CPR 52.1(4), modifies CPR 52 only to the extent necessary to accommodate the statutory scheme. In particular, CPR 52.3(2)(b) is disapplied because section 69(8) permits permission to be sought only from the High Court. CPR 52.3(2)(a) remains applicable.

3. Applying McDonald v Rose [2019] EWCA Civ 4, permission had to be sought at the hearing at which the decision was made. Because the hearing was not adjourned, a later retrospective application could not be considered. The court therefore had no jurisdiction after 7 October 2020 and no discretion to extend time.

4. The defendant’s interpretation would leave no sufficiently certain procedural rule governing the timing of permission applications in section 69 appeals. That would be irrational and inconsistent with the statutory emphasis on finality and certainty in arbitration.

5. Midnight Marine Ltd v Thomas Miller [2018] EWHC 3431 (Comm) did not assist. It did not address the present issue and provided no basis for departing from McDonald v Rose. The court did not decide whether the earlier judgment raised a question of general importance or whether relief from sanctions might have been available for a late appellant’s notice.

• High Court (Chancery Division): in the earlier judgment, cited as [2020] EWHC 2640 (Ch), the court allowed the defendant’s appeal under section 69 of the Arbitration Act 1996.
• High Court (Chancery Division): the present judgment held that permission to appeal had not been sought in time and refused permission to appeal.