CL-2024-000457, 000458, 000459 - [2025] EWHC 1803 (Comm)

Acadia Chemicals, to which Hamblen J referred, a decision of Colman J under the 1979 Act, concerned what was then RSC Order 73, rule 5(9). That rule, like CPR PD62 para 12.3(3) that followed, but unlike CPR PD62 para 12.6 now, required a respondent who wished to contend on an arbitration appeal that the award should be upheld on grounds not expressed or not fully expressed in the award to lodge with the court and serve on the appellant a notice specifying the grounds of that contention not less than two clear days before the hearing of the application for leave to appeal. The observation of HHJ Havelock-Allan QC in The Intan 6 was obiter, as the learned judge in fact allowed the additional argument in question to be put, and disposed of it on its merits rather than on procedural grounds.

I respectfully question the notion that there is an importance to leave to appeal decisions, almost always made on paper and intended to be made promptly and at modest cost to the parties, being made on a fully informed basis that is sufficient to outweigh the policy of upholding awards not shown to have been wrong in law in their results. Moreover, a failure to identify at the leave to appeal stage that, if leave is granted, the respondent will contend that the award should be upheld for reasons not given by the arbitrators, could only make a difference if that argument in prospect would persuade the court not to grant leave to appeal although (else the question would not arise at all) it was otherwise satisfied on the papers that it was a proper case for leave. The court hearing the appeal can expect to be in a good position to assess whether that would have been the position and to take it into account when dealing with costs.