Hiscox (Suing on His Behalf and on Behalf of Members of Syndicate 33 at Lloyds) (Respondent) v Outhwaite (Appellant)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mackay of Clashfern L.C.,Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Ackner,Lord Oliver of Aylmerton |
| Judgment Date | 24 July 1991 |
| Judgment citation (vLex) | [1991] UKHL J0724-4 |
| Date | 24 July 1991 |
| Court | House of Lords |
[1991] UKHL J0724-4
House of Lords
The Lord Chancellor
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Ackner
Lord Oliver of Aylmerton
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Oliver of Aylmerton. I agree with it, and for the reasons which he gives I would dismiss the appeal.
My Lords,
I have had the advantage of considering in draft the speech to be delivered by my noble and learned friend, Lord Oliver of Aylmerton. I agree with it, and for the reasons which he gives I would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Oliver of Aylmerton. I agree with it, and for the reasons which he gives I would dismiss the appeal.
My Lords,
For the reasons given by my noble and learned friend, Lord Oliver of Aylmerton, I, too, would dismiss the appeal.
My Lords,
The parties to this appeal are both Lloyd's underwriters who represent all the members of the two syndicates of which they are respectively members. The dispute arose with regard to the liabilities of the syndicates under a contract of re-insurance entered into in 1982. That contract, which it is common ground is governed by the law of England, contained an arbitration clause providing for arbitration in London by two arbitrators and their umpire. In fact the agreement was varied by the parties who agreed to refer the dispute between them to Mr. R. A. MacCrindle Q.C. as sole arbitrator. The hearings took place in London and the arbitration was conducted in two stages, the first being concerned with the appellant's contention that the agreement had been effectively rescinded. As regards that issue an award was made on 30 June 1989 when the contention was rejected. The second stage was, by agreement, limited to a determination of preliminary issues of principle relating to the quantum of claims payable by the respondent. Following hearings in London in April and May 1990, the arbitrator made a draft interim award on 6 August 1990 in the form of a number of declarations giving the parties a period of six weeks to make representations as to the form of the award. If no representations were made the award was to become binding. In fact a further hearing took place on 6 November 1990 and on 20 November 1990 the arbitrator signed his final interim award. The award made in June 1989, the draft award in August 1990 and the final interim award signed on 20 November 1990 were all signed by Mr. MacCrindle in Paris and each concluded with the words "DATED at Paris, France" followed by the date and Mr. MacCrindle's signature, witnessed by his secretary and giving an address in Paris.
Before taking up residence in France, Mr. MacCrindle had been in practice in chambers in the Temple where he remained a "door tenant" for whom the clerk to the chambers performed services from time to time. On the day on which the award was signed the respondent's solicitors were informed by the clerk by fax that the award was available to be taken up on payment of the balance of the charges due. Shortly after that the award was collected from the chambers.
On 10 December 1990 the respondent commenced three sets of proceedings in the Commercial Court, that is to say, an originating summons for leave to appeal to the High Court pursuant to section 1(3)( b) of the Arbitration Act 1979, a further originating summons for an order directing the arbitrator to state further reasons for his award pursuant to section 1(5) of the same Act and an originating motion seeking remission of the award pursuant to section 22 of the Arbitration Act 1950. On 28 January 1991 an order was made for all three proceedings to be heard together and a hearing took place on 15 February 1991 at which counsel for the appellant raised the preliminary point that the award was a Convention award within the meaning of section 7(1) of the Arbitration Act 1975, since it had been "made" in Paris, with the result that the High Court could not entertain any appeal or application for remission. On 19 February 1991 Hirst J. rejected the appellant's contention, holding that, since the arbitration was an English arbitration the central point of which was in London, the award was "made" in London, although signed in Paris. Accordingly, the High Court had jurisdiction to entertain the respondent's applications.
From this decision the appellant appealed to the Court of Appeal. That court was unanimous in rejecting the contention that the award was made in a place other than that in which it was signed and held, by a majority (Lord Donaldson M.R. dissenting) that, since it was thus, by definition, a Convention award, the High Court would (subject to a contention as to estoppel which Hirst J. had indicated that he would have decided in the respondent's favour had it been necessary for him to do so) have no jurisdiction to entertain the respondent's applications. By a majority, however, (Leggatt L.J. dissenting) the court held that the appellant was estopped in relation to these applications from objecting to the jurisdiction. The appeal was accordingly dismissed. The court, however, gave leave to appeal to your Lordships' House on an undertaking being given by the appellant not to object to the matter being heard by the Commercial Court pending the hearing of the appeal.
Following that decision, Hirst J. on 19 March 1991 granted leave to appeal against the award on the respondent's summons for that purpose. By an order of the Court of Appeal made on 25 March 1991 it was ordered that that appeal be heard by another judge and that judgment on the appeal be in writing but be placed in a sealed envelope to be opened only in the event of this House determining that there is jurisdiction to entertain it. The present position, as I understand it, is that the respondent's substantive appeal has been heard de bene esse by Evans J. and that publication of his judgment awaits the decison of this House.
By his written case the respondent seeks to uphold the judgment of Hirst J. and to contend that, even on the footing that the award is a Convention award, the High Court has (as Lord Donaldson M.R. held) jurisdiction to entertain the respondent's applications. Your Lordships have accordingly heard argument on this part of the case first since, if either of the respondents' arguments is accepted, the issue of estoppel upon which the appellant appeals becomes academic.
My Lords, the Arbitration Act 1975 was passed in order to give effect to the United Kingdom's obligations under the New York Arbitration Convention of 1958. Section 2 provides that:
"Sections 3 to 6 of this Act shall have effect with respect to the enforcement of Convention awards; …"
and section 3(1) provides that:
"A Convention award shall, subject to the following provisions of this Act, be enforceable - ( a) in England and Wales, either by action or in the same manner as the award of an arbitrator is enforceable by virtue of section 26 of the Arbitration Act 1950."
The expression "Convention award" is defined in section 7(1) as:
"… an award made in pursuance of an arbitration agreement in the territory of a State, other than the United Kingdom, which is a party to the New York Convention;"
Section 3(2) is of crucial importance having regard to the arguments addressed to the House. It provides:
"Any Convention award which would be enforceable under this Act shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in the United Kingdom; and any reference in this Act to enforcing a Convention award shall be construed as including references to relying on such an award."
Section 4 reproduces provisions of article IV of the Convention and obliges the party seeking to enforce a Convention award to produce the award and the arbitration agreement in proper authenticated form. Section 5, which gives effect to article V of the Convention, provides in subsection (1) that enforcement of a Convention award shall not be refused except in the cases mentioned in the section. Subsection (2) goes on to enumerate a number of matters which, if proved, would authorise a refusal to enforce the award. It provides so far as material:
"Enforcement of a Convention award may be refused if the person against whom it is invoked proves - … ( e) that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the country where the arbitration took place; or ( f) that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made."
Finally, subsection (5) provides:
"Where an application for the setting aside or suspension of a Convention award has been made to such a competent authority as is mentioned in subsection (2)( f) of this section, the court before which enforcement of the award is sought may, if it thinks fit, adjourn the proceedings and may, on the application of the party seeking to enforce the award, order the other party to give security."
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