Kevin Osler v Marlene Osler & Ors

Under the Arbitration Act 1996, a decision refusing permission to appeal an arbitral award on paper is final unless the court considers that a hearing is required. An erroneous order giving a right to apply to set aside or vary that refusal does not create a right to renew the application. A subsequent dismissal of an application seeking permission to appeal is itself a decision under section 69. Section 69(6) therefore requires permission from the lower court before an appeal lies to the Court of Appeal. The Court of Appeal cannot grant permission directly. The court further indicated that the arbitral award was not obviously wrong, although that conclusion was unnecessary to the disposition.

The appeal arose from an arbitration concerning the valuation of a deceased partner’s share in a farming partnership. The arbitrator directed that the share be valued by reference to partnership accounts prepared on an open-market basis. The appellant sought permission under section 69 of the Arbitration Act 1996 to appeal that issue on a point of law. Joanna Smith J refused permission on paper. An application to set aside or vary that order was dismissed by HHJ Monty KC, who held that the paper refusal was final and that there was no right to renew the application orally: [2023] EWHC 1270 (Ch). The appellant appealed to the Court of Appeal. The central issue was whether section 69(6) required permission from the High Court for that appeal.

1. The appeal was dismissed because the Court of Appeal had no jurisdiction to hear it. The application before HHJ Monty was, in substance, an application to set aside the paper refusal and replace it with permission to appeal the arbitral award. By dismissing it, HHJ Monty necessarily refused permission under section 69 of the Arbitration Act 1996. His decision therefore fell within section 69(6), which required leave from the High Court for any appeal. That leave had been refused, and the Court of Appeal could not cure the defect by granting permission itself.
2. In additional, non-dispositive reasoning, the court held that the statutory scheme was binary. Under section 69(5), an application for permission is determined without a hearing unless the court considers that a hearing is required. Once permission has been refused on paper, the application is determined and the applicant has no right to renew it orally. The erroneous reference in the order to CPR PD 52B, and the associated right to apply to set aside or vary, did not alter that result. The order was best understood as containing a clerical or template error capable of correction under the slip rule.
3. The court further indicated that the paper refusal was substantively correct. The valuation issue concerned the construction of a one-off contract and raised no question of general public importance. Permission could therefore be granted only if the arbitrator’s award was obviously wrong under section 69(3)(c)(i). Although reasonable arguments existed against the award, substantial arguments supported it, and the issue depended on the facts and contractual provisions. The award was not obviously wrong.

Lord Justice Nugee gave the judgment. Lord Justice Popplewell and Mr Justice Cobb agreed.

1. Court of Appeal (Civil Division) — [2024] EWCA Civ 516: appeal dismissed. The court held that section 69(6) required High Court permission to appeal HHJ Monty’s decision, and that the Court of Appeal therefore lacked jurisdiction.
2. High Court (Chancery Division) — [2023] EWHC 1270 (Ch): application to set aside or vary the paper refusal of permission was dismissed; costs were summarily assessed at £11,500 inclusive of VAT, and permission to appeal was refused.
3. High Court (Chancery Division) — Joanna Smith J refused permission to appeal the arbitrator’s interim award on paper on 17 October 2022.