Kevin Paul Osler v Marlene Osler & Ors

Under section 69(5) of the Arbitration Act 1996, an application for permission to appeal an arbitral award may be determined either on paper or at a hearing. Where it has been finally determined on paper, the applicant has no right to renew the application orally. An erroneous order referring to the appeal provisions in CPR Part 52 cannot confer a jurisdiction which section 69 does not provide. The court may correct or set aside the erroneous procedural wording under the slip rule or its case-management powers. A court should not determine the underlying permission merits where it has no jurisdiction to entertain a renewed application.

The applicant sought permission under section 69 of the Arbitration Act 1996 to appeal an interim arbitral award concerning the valuation of partnership assets. Mrs Justice Joanna Smith refused permission on paper on 17 October 2022, but her order stated that an affected party could apply within seven days to set it aside or vary it, referring erroneously to CPR PD 52B paragraph 7.1.

The applicant applied to set aside or vary the order and sought an oral rehearing of the permission application. The respondents argued that, once the section 69 application had been determined on paper, the court had no jurisdiction to rehear it orally. The central issue was whether the wording of the order conferred such a right.

The application to set aside or vary the earlier order was dismissed.

1. Section 69 procedure. The court accepted the principles in WSB v FOL [2022] EWHC 586 (Comm). An application for permission under section 69 is subject to the threshold requirements in section 69(3), and is ordinarily determined without a hearing under section 69(5). Unlike applications under sections 67 and 68, there is no right to an oral rehearing after refusal on paper.
2. Finality of the paper determination. Section 69(5) creates a binary procedure: the application is determined on paper unless the court positively decides that a hearing is required, or it is determined at a hearing. Once determined on paper, the application is final. The reasoning in BLCT (13096) Limited v J Sainsbury Plc [2003] EWCA Civ 884, particularly at [35], supported that conclusion.
3. Erroneous order. CPR Part 52 and CPR PD 52B do not govern section 69 appeals, which are governed by section 69 and CPR Part 62. The reference to CPR PD 52B paragraph 7.1 was therefore included in error and could not confer a right to an oral rehearing. The court had jurisdiction to dismiss the application and, alternatively, power to correct or set aside the erroneous wording under CPR 40.12 or CPR 3.1(7).
4. Disposition. The court declined to determine the underlying permission application. Permission to appeal this jurisdictional decision was refused; any further application had to be made to the Court of Appeal.

The judgment does not state an appellate history. It records an earlier paper refusal of permission to appeal by Mrs Justice Joanna Smith on 17 October 2022 in the same proceedings.