Contracts Law in UK Law

On his appeal to the UT JHB did not challenge either the facts underlying the conviction or finding 1 (see paragraph 9. This was a case in which the UT heard very limited evidence from JHB, for example, that he had not been interviewed by the police about the allegation on which finding 3 was based. The UT does not seem to have heard much evidence which had a direct bearing on the matters on which the DBS relied in making findings 2 and 3, let alone any significant evidence.

The UT began its consideration of finding 2 by announcing that the DBS ‘made a mistake with this finding’. The UT did not, in paragraphs 9–19, explain in what way finding 2 was ‘wrong’, or outside ‘the generous ambit within which reasonable disagreement is possible’. Its approach, rather, was to look at very substantially the same materials as the DBS, and to make its own findings of fact (‘These are our findings’). Those findings were different from the DBS's assessment of those materials.

That inference is supported by the explanation which the UT gave for its different assessment of the materials. On the authorities, a disagreement about the evaluation of the evidence is not ‘an error of fact’. In my judgment the material considered by the DBS did permit such a finding on the balance of probabilities. If such a finding was open to the DBS on the balance of probabilities, the DBS did not make a mistake in coming to that finding.

Second, a finding may also be ‘wrong’ for the purposes of section 4(2)(b) if it is a finding about which the UT has heard evidence which was not before the DBS, and that new evidence shows that a finding by the DBS was wrong, as the UT itself explained in PF (see paragraphs 63–65, above).

Ms Patry submitted that the words which I have italicised in paragraph 92 of the judgment of Elisabeth Laing LJ, while not departing from PF, “clarified it authoritatively”. I agree that there is no indication in JHB that PF was in any way erroneous or that the mistake of fact jurisdiction has somehow been transformed into requiring a test of Wednesbury irrationality.

Having considered all the points made by GdC, I am of the view that the ASI should be continued. Specifically, and to repeat, I am satisfied to a high degree of probability that there is an arbitration agreement which governs the dispute in question. I do not consider that there are strong reasons not to grant an injunction restraining its breach.

The proper approach to parallel proceedings was outlined by O'Farrell J in Structure Consulting Limited v Maroush Food Production Limited [2017] EWHC 962 (TCC). The judge should usually give judgment on the claim based on the adjudicator's decision and then – to the extent possible – endeavour to sort out the Part 8 proceedings.