CL-2024-000668 - [2025] EWHC 2788 (Comm)

In The ‘Ocean Crown’ [2009] EWHC 3040 (Comm), at [53], Gross J rejected a submission that, because leave to appeal had been given under s. 69 of the 1996 Act, the court hearing the appeal was bound to accept that a question of law had arisen for decision. Gross J went on:

‘The court hearing the appeal cannot of course reopen the grant of leave and leave cannot properly have been granted unless the judge seised of that issue has concluded (amongst other things) that a question of law did arise out of the award under consideration. But the court hearing the appeal is in no other way bound by the decision of the judge granting leave. On hearing the appeal, the court is not restricted as to its conclusions; so, it may conclude that in reality there is no question or error of law at all. Nor does any such conclusion involve implicit criticism of the judge who granted leave; the task of the judge considering the grant of leave is different from the task of the judge hearing the appeal.’

This topic has been revisited in subsequent cases. In Agile Holdings Corp v Essar Shipping Ltd [2018] EWHC 1055 (Comm), HHJ Waksman QC said this (at [30]-[31]):

‘[30] Second, the route to appeal under s. 69 is a very narrow one, deliberately so in deference to the interest in the finality of arbitral awards. But once a case has successfully navigated that route then it seems to me that there is every reason to move onto the merits of the question of law posed without the distraction of tangential points which have already been decided.

[31] For my part, I would make the following observations:

(1)

It is impossible to see how the issues about public importance, affecting the rights of the parties and justice and convenience can ever be raised on the appeal once leave has been granted.

(2)

The Law Question [viz that there is a question of law arising out of the award] and the Determination Question [viz that the tribunal was asked to determine that question] are in a different category but in my view the appeal court should at the very least give considerable weight to the decision by the Judge granting permission on those points.

…’

In CVLC Three Carrier Corp v Arab Maritime Petroleum Transport Company [2021] EWHC 551 (Comm), Cockerill J said, at [34]:

‘[34] I am satisfied that HHJ Waksman QC was correct in the Agile Holdings case and that the permission stage is intended to be a qualifying hurdle which is not revisited and that, while it may not be impossible to revisit the various component parts of the permission decision, there will have to be highly unusual circumstances justifying this course. Were the course which Mr Berry urges to be adopted, appeals would become much longer and more expensive, with all or most of the questions being relitigated in written and oral argument. This would be consistent neither with the policy of the 1996 Act, nor with the overriding objective.’

Most recently, in Ayhan Sezer Yag ve Gida Endustrisi Ticaret Limited Sirket v Agroinvest SA [2024] EWHC 479 (Comm), HHJ Pearce cited CVLC Three Carrier Corp, (at [82]) and found that there were no ‘highly unusual’ circumstances in that case.

Having had regard to these authorities, I consider the position to be:

In the present case, I do not consider that there are any highly unusual circumstances which justify this court revisiting the issue of whether the questions of law for which permission was given by Dias J were ones which the Appeal Board was asked to determine. I can see that there were significant arguments each way on this point, but Dias J’s conclusion, after what was clearly a careful exercise determining whether there should be permission, was justifiable. To permit revisitation of such a decision would not, as Cockerill J put it in CVLC Three Carrier Corp, be consistent with the policy of the 1996 Act or the overriding objective.

On that basis, there appears to me to be no good reason why the court should not determine the questions of law for which permission to appeal was granted. This is especially so as there was no substantial dispute at the hearing as to what the answer to at least the first of those questions should be. In any event, I do not consider that there is room for much doubt as to what those answers should be.

Thus, in relation to the first question, my determination of that question is:

As to the second question, my determination is:

The present case is, in my view, one where there should be remission of the Appeal Award to the Appeal Board for reconsideration in the light of the above determinations, pursuant to s. 69(7)(c) of the 1996 Act.

As I believe was agreed between the parties, but in any event for the purposes of clarity, I make clear that it will be open to the Appeal Board, on remission, to find that the foregoing determinations of the questions of law do, or do not, have an effect on the result hitherto reached.

The costs of the appeal should be borne by the Defendant, which resisted permission to appeal, and which, on the hearing, urged the court to revisit the question of whether the issues of law on which Dias J had given permission were ones which the Appeal Board was asked to determine. The Defendant has been unsuccessful in relation to those arguments, and should bear the costs of the appeal, as I have indicated.