V & Anor v K (Consequential Matters)

A lower court’s jurisdiction to grant permission to appeal ends when the decision hearing concludes, unless that hearing has been formally adjourned. A retrospective application after hand-down cannot therefore be entertained where no application was made and no adjournment sought. An application should also be supported by concise draft grounds of appeal. Where a challenge is hopeless, abandoned in material respects, or conducted in a manner taking the case out of the norm, indemnity costs may be appropriate. Costs may be summarily assessed where detailed assessment would add delay and expense without a sensible purpose.

The claimants challenged an arbitral award under sections 67 and 68 of the Arbitration Act 1996. The challenges were dismissed in an earlier judgment, and service of the Claim Form was set aside. The present hearing concerned consequential matters after the parties failed to agree the draft order.

The claimants sought permission to appeal against the decisions under sections 67 and 68 and against the decision concerning service. The court also had to determine costs, including the basis of assessment, responsibility for a late application to set aside an order of Bright J, the amount payable and the time for payment.

1. Permission to appeal. The application was too late. Under CPR 52.3(2) and paragraph 4.1 of PD 52A, an application to the lower court should be made at the decision hearing. Applying McDonald v Rose [2019] 1 W.L.R. 2828 (C.A.), if a party is not ready to apply at that hearing, it must seek a formal adjournment. Without an application or adjournment at hand-down, the lower court is no longer seized of the matter and has no jurisdiction to grant retrospective permission.
2. The application also breached paragraph J12.3 of the Commercial Court Guide because it was unsupported by draft grounds of appeal. The absence of concise grounds made it difficult to identify any reasonable prospect of success or other compelling reason.
3. In any event, permission would have been refused. The proposed appeals concerning service, section 67 and section 68 had no reasonable prospects of success. The section 67 challenge had been effectively abandoned, and the section 68 challenge did not disclose apparent bias or any improper reassessment of the tribunal’s procedural rulings.
4. Costs. The section 67 challenge was hopeless and should not have been made. The abandonment of numerous apparent-bias grounds and other matters took the case out of the norm. The claimants were ordered to pay 70% of the defendant’s costs on the indemnity basis and 30% on the standard basis.
5. No order as to the costs of the defendant’s relief-from-sanctions application was appropriate. Although the application was served late because it was left until the last moment, the breach was minor and was not caused by the claimants. The remaining costs were summarily assessed at £200,000, payable within 14 days.

The earlier judgment in the same litigation, [2025] EWHC 1523 (Comm), dismissed the claimants’ challenges under sections 67 and 68 of the Arbitration Act 1996. The present judgment determined consequential matters and refused permission to appeal.