RRY v NKX

Where a decision under Arbitration Act 1996 section 69 is made without a hearing, the statutory right to seek permission to appeal from the lower court cannot be removed by applying CPR 52.3(2)(a). CPR 52.1(4) requires the inconsistent procedural rule to yield. The appellant’s notice must nevertheless be filed within 21 days under CPR 52.12(2)(b), although the application for permission to appeal is not subject to a fixed CPR time limit. Permission should be refused where the proposed appeal has no realistic prospect of success or other compelling justification. A challenge under section 68 requires an arguable serious irregularity causing substantial injustice; disagreement with an arbitrator’s procedural or evidential discretion is insufficient.

The claimant challenged a partial final arbitration award under sections 68 and 69 of the Arbitration Act 1996. The court had previously refused leave to appeal under section 69 and summarily dismissed the section 68 challenge. The claimant sought to set aside the summary dismissal, an extension of time, and permission to appeal to the Court of Appeal. The issues included the interaction between the statutory right to seek permission and CPR Part 52 where the section 69 decision was made on the papers, whether the proposed section 69 appeal had a realistic prospect of success, and whether the alleged procedural matters disclosed serious irregularity and substantial injustice.

1. Extension of time and procedural framework. The application to extend time was dismissed because no fixed CPR time limit applied to the making of an application for permission to appeal against a section 69 decision made without a hearing. CPR 52.12(2)(b) nevertheless required any appellant’s notice to be filed within 21 days of the decision. CPR 52.3(2)(a) could not apply because it would remove the statutory right under section 69(6) to seek permission from the lower court. By CPR 52.1(4), the inconsistent CPR provision yielded to the Act.
2. Section 69 appeal. Proceeding on the assumption that the ordinary permission test applied, the court held that none of the proposed grounds had a realistic prospect of success or disclosed another compelling reason for an appeal. The arbitrator had applied orthodox contractual construction principles. His conclusions on the alleged repayment, interest waiver and acknowledgment under section 31(6) of the Limitation Act 1980 were either factual or involved no arguable error of law.
3. Section 68 challenge. The arbitrator had a wide discretion over the evidence and cross-examination required. Rationally limiting evidence about a later breakdown in the parties’ relationship did not amount to serious irregularity. Nor did inviting submissions on an estoppel identified by the arbitrator require him to invite a different estoppel argument. The claimant had an opportunity to raise such an argument, and any failure to do so was not a failure by the arbitrator to conduct the reference properly.
4. The application to set aside the summary dismissal was refused. Leave to appeal to the Court of Appeal was refused, and the claim remained finally dismissed. There was no order as to the costs of the set-aside application.

The judgment concerned applications arising from the court’s earlier order dated 4 September 2024, which refused leave to appeal under section 69 and summarily dismissed the section 68 challenge. The present court refused to set aside that dismissal and refused permission for any appeal to the Court of Appeal.