England and Wales Cricket Board Ltd (Applicant/Claimant) v Danish Kaneria (Respondent/Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cooke |
| Judgment Date | 21 March 2013 |
| Neutral Citation | [2013] EWHC 1074 (Comm) |
| Docket Number | Case No: 2013-Folio-329 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 21 March 2013 |
[2013] EWHC 1074 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
The Honourable Mr Justice Cooke
Case No: 2013-Folio-329
Mr I Mill QC and Mr N De Marco (instructed by Onside Law) appeared on behalf of the Claimant
Mr T Moloney QC and Mr J Bunting (instructed by Time Solicitors) appeared on behalf of the Defendant
No of words: 6,325
No of folios: 88
I have to decide one issue only on this application for a witness summons under section 43 of the Arbitration Act 1996, namely whether the proceedings before the appeal panel of The England And Wales Cricket Board Limited constituted under the disciplinary regulations of that board (to which I shall refer as the ECB) are arbitration proceedings within the meaning of the Arbitration Act.
The Oxford English Dictionary defines "arbitration" as:
"The settlement of a question at issue, by one to whom the conflicting parties agree to refer their claims in order to obtain an equitable decision."
The ECB is a company limited by guarantee with members. The object clause in its Memorandum of Association states that its objects are: (1) to be the governing body of all cricket in England and Wales; (2) to promote and exploit cricket commercially at all levels; (3) to administer the game of cricket at all levels and further to encourage and regulate the relations between cricketers and those who employ them. Their other functions relate to membership of the International Cricket Council and the fulfilment of roles previously carried out by prior bodies to which it is, effectively, the successor.
I am concerned only with the appeal proceedings under the ECB's disciplinary regulations but Mr Moloney QC who appeared for the Defendant submitted that regard must be had to the whole of the disciplinary regulations and the totality of the complaints procedure in those regulations including the summary procedure and the provisions relating to the disciplinary panel hearings, because these appeal proceedings arise from such a hearing by a disciplinary panel.
I accept that the appeal proceedings provisions must be read in context and against the background of the other parts of the complaints procedure but there is no difficulty in my judgment, in theory or practice, in having an appeal procedure that does constitute arbitral proceedings when the initial disciplinary proceedings do not, although the terms of the provisions as a whole may suggest one conclusion or other.
Here, the only significant difference in procedure between the CDC disciplinary panel hearings and the appeal panel hearings appears to lie in the absolute right in the case of the latter to legal representation for the respondent as opposed to a discretionary right to such representation in the case of the former.
I see little difficulty in such a distinction between arbitral proceedings on the one hand and internal proceedings on the other if that is the conclusion to which the facts and law necessarily lead.
Mr Moloney QC submits that it is for the ECB to show that there is an unequivocal agreement to arbitrate and that the proceedings when looked at as a whole have the necessary characteristics of arbitration.
Mr Mill QC for the ECB accepts that burden in relation to the ECB's appeal procedures and submits that he discharges that burden by reliance upon: (1) an undertaking signed by the Defendant; (2) the ECB Cricket Discipline Regulations, i.e., the Regulations of the Cricket Disciplinary Commission (the CDC); (3) the constitution of the CDC and; (4) the ECB Articles of Association. These, he submits, show an unequivocal agreement by the Defendant to abide by the rules and regulations, directives and resolutions of the ECB including the CDC Regulations and that this includes the procedure for disciplinary panel hearings and appeal panel hearings, the latter of which constitute arbitration proceedings (whether or not the former do), in the light of the dicta of Thomas J, as he then was, albeit obiter in Walkinshaw v Diniz [2000] 2 All ER (Comm) 237.
Put shortly, Mr Moloney contends that the passages upon which Mr Mill relies in Walkinshaw are obiter, which undoubtedly they are, and that the governing principles appear in the Court of Appeal decision in Stretford v The Football Association [2007] EWCA Civ 238. He submits that these principles require an unequivocal agreement to arbitrate which refers sufficiently clearly to the concept of "arbitration" as such and to the finality of the decision-making process to be employed.
At the outset, it should be pointed out that the characterisation of the appeal panel proceedings can only, it is common ground between the parties, be that of arbitration on the one hand or that of an internal disciplinary procedure on the other, that "internal disciplinary procedure" being that of a body to which the Defendant has voluntarily subscribed.
Both parties accept that the situation is, so far as the structure is concerned, akin to that found in Stretford and the position of the Football Association in the context of the regulation of that sport in this country.
Although Mr Moloney referred at various stages in his submissions to the ouster of the court's jurisdiction, the choice is, in my judgment, just as I have described it. If the appeal panel proceedings are in the nature of an arbitration, then remedies for serious irregularity in those proceedings and rights of appeal or recourse to the court are expressly governed and limited by the Arbitration Act 1996 and, in particular, sections 67 to 69 and the provisions ancillary to them. If these proceedings are "internal proceedings", then the court could act only if there was either: (1) a breach of human rights or; (2) a breach of contract in the shape of a breach of some implied term as to the conduct of those proceedings, in the absence of some overriding public policy element such as unreasonable restraint of business or trade or; (3) some form of judicial review was found to be available.
On 28 April 2009, the defendant signed an undertaking to the ECB in the following terms:
"I, Danish Prabhar Shanker Kaneria hereby undertake and confirm that I will abide by the Laws of Cricket, the present Rules, Regulations, Directives and Resolutions of the England and Wales Cricket Board (the ECB) and any further Rules, Regulations, Directives and Resolutions brought to my notice during the season 2009 and acknowledge that I have seen and read … (b) the Cricket Discipline Regulations and (c) the current Directives of ECB … which are set out in ECB Rules and Regulations 2009."
The CDC Regulations refer to the CDC itself. The Constitution of the CDC sets out its terms of reference thus:
"3.1 To operate in all manners and in respect of all of the functions and powers set out herein at arm's length from the ECB save in so far as in so doing would hinder the proper administration and exercise of the ECB's functions and powers or the CDC's functions and powers.
3.2 To administer ECB's Disciplinary Procedure Regulations ('DPR') and to exercise on behalf of ECB as the CDC thinks fit all powers and discretions of the Board or of the CDC contained or referred to therein.
3.3 To administer any and all other Rules, Directives or Regulations of ECB or the CDC as they relate to discipline and to exercise on behalf of the ECB as the CDC thinks fit all powers and discretions of the Board or of the CDC contained or referred to therein."
The criteria for membership, to quote paragraph 4.2 of the Constitution, state:
"4.2 … no member shall be appointed and/or elected to the CDC who fails to meet the said Criteria.
4.3 With effect from the Effective Date the CDC shall consist of not less than 11 members on the following basis (and, where relevant put forward or, if there are more candidates than there are vacancies, elected by the relevant body identified below."
There then follows a list under paragraph 4.3 setting out that CDC membership as follows:
Six Members who have been validly put forward or elected as members by the First Class County Clubs and then approved as such by the members of the CDC;
Two Members who have been validly put forward or elected as members by the Recreational Assembly and then approved as such by the members of the CDC;
One member who has been validly put forward or elected as a member by the Professional Cricketers' Association (PCA) and then approved as such by the members of the CDC;
One member who has been validly put forward or elected as a member by the MCC and then approved as such by the members of the CDC;
One member who has been validly put forward or elected as a member by the First Class Umpires and then approved as such by the members of the CDC;
Up to Six Members Nominated by the Chairman following discussion with the Deputy Chairmen and then appointed as such by the members of the CDC. Such appointments to take place from time to time as appropriate.
The Chairman and Deputy Chairmen shall apply the Membership Criteria in respect of persons to be appointed and shall consider any further matter they consider relevant, including but not limited to geographical or professional deficits or imbalances within the existing membership.
If any person put forward or elected is not approved as a member by the CDC then the body or person which put forward or elected...
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