K1 v B

Section 68(4) of the Arbitration Act 1996 makes the first-instance court the sole gatekeeper for permission to appeal from a decision under section 68. Whether the alleged facts engage a closed-list serious irregularity, or whether substantial injustice has been established, concerns the merits of the challenge rather than the court’s jurisdiction. Such decisions are therefore subject to the statutory restriction. A consent order extending time cannot create a right of appeal or confer jurisdiction which Parliament has withheld. The Court of Appeal retains only narrow residual jurisdiction, including where the purported decision was made without jurisdiction, was not a decision at all, or the hearing denied a fair trial.

K1 challenged an arbitration award under section 67 of the Arbitration Act 1996. Before that challenge was determined, K1 applied to amend it to add an out-of-time challenge under section 68(2)(g), alleging that the underlying engagement was a contract for fraudulent services. Mr Justice Knowles refused the amendment, holding that the proposed ground was not arguable, and refused permission to appeal: K1 v B [2025] EWHC 2539 (Comm).

K1 renewed its application in the Court of Appeal. It argued that a consequential consent order preserved a right to seek permission from that court, and that the first-instance decision was jurisdictional rather than a decision under section 68. The central issue was whether section 68(4) prevented the Court of Appeal granting permission.

1. Disposition. Lord Justice Foxton held, with Lord Justice Phillips agreeing, that the Court of Appeal had no jurisdiction to grant permission to appeal. The application was dismissed. The court also made the order sought preserving confidentiality and anonymisation.

2. Consent order. The consequential order merely postponed the time running for an application which K1 was otherwise entitled to make. It did not confer a right to seek permission from the Court of Appeal. A consent order, agreement or estoppel cannot override the mandatory statutory restriction in section 68(4), read with section 4(1) and Schedule 1 of the Arbitration Act 1996. Osler v Osler [2024] EWCA Civ 516 supported the conclusion that even a purported grant of permission cannot overcome the statutory limitation.

3. Merits and jurisdiction. Section 68 relief requires an applicant to establish one of the closed-list serious irregularities in section 68(2) and substantial injustice caused by that irregularity. Whether the alleged facts engage section 68(2)(g), whether the factual predicates of a ground are satisfied, and whether substantial injustice is shown are all merits questions. A decision that section 68(2)(g) is not engaged is therefore a decision under section 68, even if it rejects the proposed challenge as legally unavailable. The distinction in Cetelem SA v Roust Holdings [2005] EWCA Civ 618 concerned a genuinely jurisdictional statutory limit on the type of order the court could make. The reasoning in Sumukan Ltd v Commonwealth Secretariat [2007] EWCA Civ 243 likewise distinguished exclusion of the court’s jurisdiction from decisions made within the arbitration process.

4. Policy and exceptions. The restriction reflects the statutory policy of finality, speed and economy in arbitration. The first-instance court is the sole gatekeeper for permission, avoiding further delay, expense and uncertainty about the status of the award. Narrow exceptions remain where the purported decision was made without jurisdiction, was not a decision at all, or the hearing infringed the applicant’s right to a fair trial. None applied here. The court expressed no view on the arguability of the proposed appeal.

5. Confidentiality. Since the arbitral proceedings and the Commercial Court judgments had been kept private and anonymised, the Court of Appeal considered it inappropriate to revisit those arrangements merely because the application could not proceed. Publication of an anonymised judgment sufficiently addressed any public interest in the legal issue.

• Court of Appeal (Civil Division): K1’s renewed application for permission to appeal was dismissed because section 68(4) of the Arbitration Act 1996 deprived the Court of Appeal of jurisdiction: [2026] EWCA Civ 261.
• High Court, Commercial Court: Mr Justice Knowles refused K1’s application to amend its section 67 challenge to add an out-of-time section 68(2)(g) ground, holding that it was not arguable, and refused permission to appeal: K1 v B [2025] EWHC 2539 (Comm).