Dr Ali Asghar v Dr Shobhana Patel

On an appeal under section 69 of the Arbitration Act 1996, a contract reduced from an oral agreement into writing must be construed as a written contract. The court applies the objective meaning of the words used, having regard to the factual matrix at formation. Subjective intentions and subsequent events are inadmissible as aids to construction. The phrase “for” may create dependent or concurrent obligations where it describes an exchange. A court may set aside an award rather than remit the matter where the correct construction is clear and remission would cause disproportionate expense and delay.

The claimant appealed under section 69 of the Arbitration Act 1996 against an arbitral award concerning the amount payable on the defendant’s retirement from a medical partnership. The parties had reached an oral agreement in January 2018, which they accepted had subsequently been reduced to writing in an email.

The arbitrator treated the agreement as oral, admitted evidence of the parties’ recollections and subsequent conduct, and concluded that payment of £60,000 was not conditional on transfer of the defendant’s share in partnership property. The central issues were whether the agreement was written, whether the arbitrator had made an error of law in construing it, and whether the award should be set aside or remitted.

1. Permission. The court declined to revisit the grant of permission as a preliminary matter. The question whether there was an error of law was to be determined on the appeal itself. Although the permission stage is generally not reopened absent highly unusual circumstances, the court could determine that no error of law had in fact occurred: Ocean Crown v Five Oceans Salvage Consultants [2010] 2 All ER (Comm) 931.
2. Nature of the agreement. The pleadings and the award established that the oral agreement had been “reduced to writing”, meaning that the agreement in its entirety had been put into written form. It was therefore a written agreement. Oral evidence could not be admitted to qualify the written contract.
3. Error of law. The arbitrator was required to construe the written agreement objectively in accordance with the principles in Wood v Capita [2017] AC 1173. Subjective intentions and events after formation were irrelevant to the objective meaning of the words chosen by the parties. The arbitrator’s reliance on later emails and subsequent conduct was therefore legally wrong.
4. Construction and result. The words “You will be paid £60,000 for your share of the surgery building” created dependent or concurrent obligations. Payment was the consideration for transfer of the defendant’s share. Since transfer had become impossible, no obligation to pay the £60,000 arose.
5. Enforcement arguments and disposal. The defendant could not raise new enforcement arguments on the appeal because they had not been before the tribunal, were not pure points of law, and had not been raised at the permission stage. The appeal succeeded. The award was set aside under section 69(7) of the Arbitration Act 1996, rather than remitted, because the proper construction was clear and remission would cause further expense and delay.

• Arbitration. An arbitrator issued an award on 7 March 2025 concerning the parties’ agreement on the defendant’s retirement from the partnership.
• High Court (Circuit Commercial Court). Permission to appeal was granted on 27 May 2025. The appeal was allowed and the award was set aside under section 69(7) of the Arbitration Act 1996.