Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Mrs Justice Arden,Lord Justice Swinton Thomas |
| Judgment Date | 28 July 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0525-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/1999/7879 |
| Date | 28 July 2000 |
[2000] EWCA Civ J0525-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
AND CONSTRUCTION COURT
(Mr Justice Dyson)
(QUEEN'S BENCH DIVISION) TECHNOLOGY
Royal Courts of Justice
Strand,
London, WC2A 2LL
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION) TECHNOLOGY
AND CONSTRUCTION COURT
(Mr Justice Dyson)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Swinton Thomas
Lord Justice Waller and
Mrs Justice Arden
LORD JUSTICE SWINTON THOMAS
LORD JUSTICE WALLER and
Mrs JUSTICE ARDEN
Case No: A2/1999/7879
Case No: A2/1999/7879
Michael Black Esq QC (instructed by Messrs Elliotts) for the Applicant
Miss Finola O'Farrell (instructed by Messrs Shadbolt & Co) for the Respondent
Michael Black Esq QC (instructed by Messrs Elliotts for the Applicant)
Miss Finola O'Farrell (instructed by Messrs Shadbolt & Co for the Respondent)
Henry Boot Construction (UK) Ltd (Henry Boot) are the main contractors under a building contract on JCT Standard Form of Building Contract, 1980 Edition (with Quantities). Malmaison Hotel (Manchester) Limited (Malmaison) are the employers. A dispute arose in relation to the proper construction of Clause 25 of the contract, and as to whether the Architect should have granted a further extension of time. The matter was referred to arbitration, and Mr Bruce Mauleverer QC made an interim award. With the consent of Malmaison (by virtue of Clause 41.6.1 of the contract), Henry Boot challenged the interim decision under Section 69(1) of the Arbitration Act 1996 in the Mercantile Court in Manchester. The matter was transferred to the Technology and Construction Court at the Royal Courts of Justice, and heard by Dyson J. He upheld the view of the arbitrator. Henry Boot sought from the judge leave to appeal to this court under Section 69(8) of the 1996 Act. That was refused by Dyson J. They then sought leave from Dyson J to appeal his refusal of leave. He was of the view that he had no jurisdiction to grant such leave but made clear that even if he had he would have refused leave.
Mr Black QC on behalf of Henry Boot has sought to persuade us either that the Court of Appeal has jurisdiction to grant leave to appeal under Section 69(8) of the 1996 Act, or at the least that it has the power to review the refusal of leave ie (as I would understand it) that this court has the power either to treat Dyson J's refusal as a decision of the High Court in relation to which this court could itself grant leave to appeal; or review it in the sense of holding that the judge did not exercise his discretion properly, and substituting the exercise of this court's discretion for that of the judge.
At the conclusion of Mr Black's submissions, we ruled that on the proper construction of Section 69(8), since Dyson J had refused leave to appeal, this court had no jurisdiction either itself to grant leave or to review that refusal to grant leave. These are our reasons for so ruling.
Section 69(8) provides as follows:-
"The decision of the court on an appeal under this section shall be treated as a judgment of the court for the purposes of a further appeal.
But no such appeal lies without the leave of the court which shall not be given unless the court considers that the question is one of general importance or is one which for some other special reason should be considered by the Court of Appeal."
The court is defined in section 105 as the High Court or the County Court.
Simply as a matter of construction "the court" whenever it appears in the subsection seems to mean the "High Court" or the "County Court", and it is to be contrasted with the use of the words the "Court of Appeal" where that court was intended. At one stage of his argument Mr Black felt constrained to accept that that must be so, but he submitted that the words of the subsection did not preclude the Court of Appeal reviewing the grant of leave. He submitted that although it was understandable that Parliament should support the view that arbitrators were tribunals chosen by the parties and that interference in their decisions should be kept to a minimum, that philosophy should not apply to proceedings once they were in court. He submitted that clear words would be necessary to curtail a litigant's right of appeal.
Miss Finola O'Farrell in her skeleton argument submitted that the language of the subsection is clear, that a requirement for leave to be obtained from the High Court or County Court to appeal a decision on an arbitration application was consistent with Parliament's attitude that there should be as little interference as possible with arbitration awards, and she would not accept the approach that there was prima facie any "right" to appeal. To be entitled to appeal a would-be appellant must bring himself within a statutory provision providing for that right.
In my view it would be difficult to find words clearer than the words of this particular subsection for the proposition that leave of the High Court (or the County Court) was needed before any appeal could be brought in the Court of Appeal. Furthermore, if one has regard to its statutory predecessor, the position becomes clearer still. It is in my view unnecessary to have regard to the Departmental Advisory Committee's Reports on the Arbitration Bill which lay behind the drafting of the 1996 Act, but if confirmation were needed of the views formed they are readily ascertained from that report.
It would furthermore seem to me absurd to contemplate a review process in the Court of Appeal in relation to the giving of that leave, otherwise the objective sought to be attained is defeated.
Let me start with that last point first, not least because it enables the authorities to be reviewed in chronological sequence.
In Lane v. Esdaile [1891] AC 210 the House of Lords had to consider whether an appeal lay to the House of Lords after a refusal by the Court of Appeal to grant "special leave" under the following provision.
"No appeal to the Court of Appeal from any interlocutory order, … shall, except by special leave of the Court of Appeal, be brought after the expiration of twenty-one days, … "
Lord Halsbury's speech is instructive, and I make no apology for quoting a substantial portion of it.
"My Lords, I am of opinion that this preliminary objection ought to prevail. An appeal is not to be presumed but must be given. I do not mean to say that it must be given by express words, but it must be given in some form or other in which it can be said that it is affirmatively given and not presumed. In the particular case now before your Lordships the appeal is certainly not given in express words. The words used are "leave of the Court"; and although it may be that in some sense the leave of the Court, whether it is given or withheld, becomes an order (that I will not stay to discuss), that is not the ordinary mode in which it would be described. It is to be something that is done by the order of the Court. I confess myself I should hesitate if it was only to turn upon the question of language, because although a thing might be called an order, or might be called a judgment, or might be called a rule, or might be called a decree, it might well be that nevertheless by reason of the context it would come within the obvious meaning and purpose of the statute; so that although it was no one of those things in name it might be one of those things in substance, and therefore would come within the general provision that an appeal should lie.
But when I look not only at the language used, but at the substance and meaning of the provision, it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal —that there should not be an appeal unless some particular body pointed out by the statute (I will see in a moment what that body is), should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal? And if the intermediate Court could enter and must enter into that question, then the Court which is the ultimate Court of Appeal must do so also. The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has...
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