The French State v The London Steam-Ship Mutual Insurance Association Limited

Leave to appeal under section 69(8) of the Arbitration Act 1996 requires a point of general importance and a real prospect of success, assessed after the Commercial Court has determined the appeal. Permission may nevertheless be granted where the applicable threshold is met, even if the court has doubts about the merits. A leapfrog certificate requires each statutory condition to be satisfied and remains discretionary. Where several interrelated issues, including procedural fairness, human rights and arbitration matters, should be determined together, the appropriate appellate court may be the Court of Appeal rather than the Supreme Court.

France and Spain applied following the court’s judgments of 6 October 2023. They sought leave under section 69(8) of the Arbitration Act 1996 in relation to appeals from arbitral awards, including an equitable compensation issue. Spain also sought permission to appeal the determination that the Club’s appeal against a Registration Order succeeded, together with a leapfrog certificate under section 12 of the Administration of Justice Act 1969.

The applications concerned whether the CJEU judgment affected Spain’s alleged equitable obligation to arbitrate, whether prior findings created an issue estoppel, and whether the registration decision should be appealed directly to the Supreme Court.

1. Leave was granted to France and Spain under section 69(8) of the Arbitration Act 1996 on the equitable compensation ground. The court considered that the issue was one of general importance on which an appeal had a real prospect of success.

2. Spain’s application for leave concerning grounds (1) and (2) was refused. The CJEU judgment did not address whether Spain was obliged to arbitrate or whether maintaining proceedings in Spain was an actionable breach of an equitable obligation or unconscionable. The court also held that the fact that leave had previously been granted under section 69(2)(b) did not determine whether the issue remained of general importance under section 69(8), particularly after the appeal had been heard and dismissed. The reasoning was consistent with Kyla Shipping Co Ltd v Bunge SA [2013] EWCA Civ 734.

3. Permission was granted to Spain to appeal on all grounds concerning the Registration Order. The court identified realistic prospects of success only if Spain could overcome the findings that the CJEU judgment had no relevant bearing because of Spain’s submission, and that an issue estoppel arising from the 2013 decision prevented reliance on a premise that the section 66 judgments were improperly given.

4. A leapfrog certificate under section 12 of the Administration of Justice Act 1969 was refused. The court was not satisfied that all necessary grounds involved points of law of general public importance or met the statutory conditions. It also considered that the interrelated issues, including procedural fairness, human rights and equitable compensation, should be determined together by the Court of Appeal. The discretionary nature of the assessment was recognised, consistent with Henderson v Dorset Healthcare University NHS Trust [2017] 1 WLR 2673 at [103].

The applications followed the court’s judgments of 6 October 2023, which dismissed the States’ section 69 appeals from arbitral awards and determined that the Club’s appeal against the Registration Order succeeded.

• High Court (Commercial Court): on 19 December 2023, granted leave on the equitable compensation issue, refused Spain leave on grounds (1) and (2), granted Spain permission to appeal the Registration Order decision, and refused a leapfrog certificate.