Ravestein BV v Trant Engineering Limited

Permission to appeal under section 69 of the Arbitration Act 1996 requires the applicant to show that the question substantially affects the parties’ rights, was determined by the tribunal, and is either obviously wrong or raises a question of general public importance on which the decision is at least open to serious doubt. It must also be just and proper for the court to intervene.

In construing a contractual notice, the court applies an objective standard. A notice under NEC3 clauses W2.3(11) and W2.4(2) must identify the matter disputed and state an intention to refer it to the tribunal. It is not enough merely to reject an adjudicator’s decision as final and binding. Difficulty of construction does not itself create ambiguity.

The claimant sought permission to appeal an arbitrator’s jurisdictional award under section 69 of the Arbitration Act 1996. The arbitrator had held that an email did not constitute a valid Notice of Dissatisfaction under clauses W2.3(11) and W2.4(2) of the parties’ amended NEC3 subcontract.

The consequence was that an adjudicator’s decision concerning alleged defects became final and binding, leaving the arbitrator without jurisdiction to determine the underlying dispute. The central questions were whether the arbitrator’s decision was obviously wrong, or alternatively open to serious doubt on a question of general public importance, and whether it was just and proper for the court to determine the issue.

1. Permission refused. The validity of the Notice of Dissatisfaction substantially affected the parties’ rights, and the question had been determined by the arbitrator. Those requirements under section 69(3) of the Arbitration Act 1996 were satisfied.
2. The arbitrator’s decision was not obviously wrong. The relevant contractual clauses required the notice to identify the matter disputed and to state an intention to refer it to the tribunal. The court rejected the claimant’s submission that it was sufficient merely to indicate that the adjudicator’s decision was not accepted as final and binding. The judgment in Transport for Greater Manchester v Kier Construction Ltd [2021] EWHC 804 (TCC) was read as addressing those two separate requirements.
3. The alleged notice, read objectively and in the context of the surrounding correspondence, amounted only to a challenge to the adjudicator’s jurisdiction. It did not identify a dispute concerning the merits of the adjudicator’s decision or state an intention to refer that substantive dispute to arbitration. The arbitrator’s reasoning was cogent and his conclusion could not be characterised as obviously wrong or open to serious doubt.
4. The reasoning in The Pera [1985] 2 Lloyd’s Rep. 103 did not assist the claimant. That case concerned construction of a contractual clause rather than validity of a notice given under it. Further, the email was difficult to construe but was not ambiguous. Difficulty is not equivalent to ambiguity.
5. The question was not one of general public importance. Although interpretation of standard clauses may raise such an issue, this application concerned the meaning of an individual email and the application of already-considered standard provisions. It was also not just and proper for the court to intervene, having regard to the arbitration agreement and the claimant’s failure to pay despite the adjudication enforcement proceedings.
6. The application and other orders sought were refused. The claimant was ordered to pay the defendant’s summarily assessed costs of £20,222.37.

This was a first-instance application to the High Court under section 69 of the Arbitration Act 1996 concerning an arbitrator’s award dated 22 March 2022 and corrected on 4 April 2022. No prior appellate decision is stated.