Emma Louise Collins & Ors v Wind Energy Holding Company Ltd

A challenge to an arbitral award under Arbitration Act 1996 section 68 is a longstop remedy. The applicant must show a serious procedural irregularity of a kind listed in section 68(2), causing or likely to cause substantial injustice. The threshold is high.

An arbitrator has a broad case-management discretion under section 33 and the applicable arbitration rules. Fairness does not invariably require legal representation or an adjournment. The court assesses the information available to the arbitrator at the time, including the parties’ responsibility for procedural difficulties and the need to avoid unnecessary delay and expense.

Section 68 is concerned with due process, not with correcting allegedly wrong factual or legal conclusions, inadequate evaluation of evidence, or reasons that do not address every submission.

The claimants sought to set aside a Final Award in an LCIA arbitration under section 68 of the Arbitration Act 1996. The arbitrator had rejected their claim concerning a letter of indemnity and allowed the respondent’s substantial counterclaim.

The challenge alleged that the arbitrator had acted unfairly by refusing a longer adjournment, proceeding when the claimants lacked legal representation and one claimant was medically unfit, excluding or limiting late evidence, failing to test the respondent’s evidence, and relying on findings from other proceedings without making an independent assessment.

The central issues were whether the arbitrator had failed to comply with section 33, and whether any such failure caused substantial injustice within section 68(2).

1. The claim was dismissed. No serious irregularity had occurred and the claimants had not shown substantial injustice.

2. Section 68 is a longstop remedy. It requires an irregularity within section 68(2), together with substantial injustice. The court will not use it as a general supervisory jurisdiction over the arbitral tribunal’s factual findings, legal conclusions, evidential assessments or reasons.

3. The arbitrator acted within the broad discretion conferred by section 33 of the Arbitration Act 1996 and Article 14 of the LCIA Rules. The claimants had repeatedly failed to take prompt and proper steps to obtain clarification or variation of the freezing order, and their late disclosure of the funding difficulty did not justify an open-ended adjournment. The arbitrator was entitled to balance fairness against the avoidance of unnecessary delay and expense.

4. Legal representation is not invariably required for a fair civil or arbitral hearing. Fairness depends on the circumstances. Here, the claimants remained entitled to participate in person, the arbitrator invited such participation, allowed the draft Sur-Reply to stand as a pre-hearing brief, and took steps to assist them as unrepresented parties.

5. The medical material concerning Ms Collins was supplied immediately before the hearing and was not expressly advanced as an application for an adjournment. In the circumstances, the arbitrator was not required to adjourn of her own motion. In any event, substantial injustice was not shown: the issues turned substantially on law, construction and documents, and written evidence remained available.

6. The arbitrator was entitled to reject three unsigned witness statements and to admit other late material subject to its proper weight. She was also entitled to decide how far to test the respondent’s evidence. Under section 68, a tribunal need not refer to every item of evidence or submission, provided it decides the essential issues and gives reasons for its award.

7. The arbitrator had cited credibility findings from earlier proceedings but expressly recognised that she was not bound by them and made her own findings. Section 34 of the Arbitration Act 1996 entitled her to determine evidential questions, including admissibility, relevance and weight.