Hiscox v Outhwaite
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE McCOWAN,LORD JUSTICE LEGGATT |
| Judgment Date | 11 March 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0311-5 |
| Docket Number | 91/0267 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 March 1991 |
[1991] EWCA Civ J0311-5
The Master of the Rolls
(Lord Donaldson)
Lord Justice McCowan
Lord Justice Leggatt
91/0267
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(MR. JUSTICE HIRST)
Royal Courts of Justice
MR. JONATHAN SUMPTION Q.C. and MR. CHRISTOPHER BUTCHER (instructed by Messrs. Elborne Mitchell) appeared for the Appellant.
MR. ANTHONY COLMAN Q.C., MR. J. C. B. GILMAN Q.C. and MR. JOHN LOCKEY (instructed by Messrs. Fishburn Boxer) appeared for the Respondent.
The Issues
This appeal from a decision of Hirst J. raises two interesting and novel points of arbitration law:-
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(1) Where is an arbitration award "made" for the purposes of section 7(1) of the Arbitration Act 1975 which defines a "Convention award" as meaning "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"?
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(2) To what extent, if at all, do the Arbitration Acts 1950 and 1979 apply to a Convention award where the procedural law of the arbitration is English?
There is an additional issue, which is of less general importance, namely whether Mr. Outhwaite is estopped by his conduct from raising either point.
The facts
The dispute which was referred to arbitration concerned liabilities under a re-insurance contract, both parties being members of Lloyds. The original agreement to refer contemplated the appointment of two arbitrators and an umpire, but this was varied by the agreement of the parties to an agreement to refer to the arbitrament of Mr. R. A. MacCrindle Q.C. as sole arbitrator. The original arbitration agreement provided that the "Arbitration shall take place in London" and this was unaffected by the variation. Both this agreement and the re-insurance contract were governed by English law.
The arbitration was conducted by stages. The first stage concerned a contention on the part of Mr. Outhwaite that he was "entitled to avoid the contract of re-insurance ab initio by reason of non-disclosure or alternatively of misrepresentation and that by a letter dated 2nd September 1987 he had validly avoided or rescinded it". By an award dated 30th June 1989 Mr.
MacCrindle rejected this contention. The award concluded :-
"DATED at Paris, France, this 30th day of June, 1989.
| Witness to the signature | [signed] |
| of Robert Alexander MacCrindle | ROBERT ALEXANDER MACCRINDLE |
| [Signed] | 21 Avenue George V |
| Secretary | 75008, Paris, France." |
The second stage, by agreement between the parties, was limited to a determination "by way of preliminary issue of such issues of principle relating to the quantum of the claims payable by the Respondent as might be pleaded by the parties".
Hearings took place in April and May 1990 and in August 1990 Mr. MacCrindle made an award in the form of a declaration. The award was in draft because all concerned contemplated that in so complicated a matter the declarations might require clarification. Accordingly the award provided as follows:-
"8. If within 6 weeks of the date hereof I shall have been notified in writing by either party that it desires to make representations to me as to the form which my Interim Award herein shall take, having regard to my Reasons, the foregoing shall be treated as a draft only and the final form will be determined following a further hearing for that purpose or as may be otherwise agreed by the parties. Unless I shall have been so notified within such 6 weeks the foregoing shall stand as my Interim Award."
The award concluded in the same form as that on liability, save that it was dated 6th August 1990. In fact it appears to have reached the parties on 2nd August 1990.
On 3rd August 1990 Messrs. Fishburn Boxer, solicitors acting on behalf of Mr. Hiscox, wrote to Messrs. Elborne Mitchell, solicitors acting on behalf of Mr. Outhwaite, as follows:
"We take the view, and we would be obliged if you would confirm that you agree, that if either party is contemplating making an application for leave to appeal to the Court on any aspect of the Award, time does not run until at the earliest six weeks from 6th August 1990."
On 6th August 1990 Messrs. Elborne Mitchell replied:-
"It is our understanding of Point 8 of the Arbitrator's Award that if either party within six weeks of 6th August 1990 notifies the Arbitrator in writing that it desires to make representations as to the form of the Arbitrator's Award, then this Award dated 6th August 1990 shall be treated as a draft only and the final form will be determined following the further hearing and that the time for appeal will commence running from the date of this final form. If, however, neither party notifies the Arbitrator in writing within six weeks of 6th August 1990 that it desires to make representations, then the Award dated 6th August 1990 will be treated as the Arbitrator's Interim Award and that the time for appeal will commence running at six weeks from 6th August 1990, as you have stated in the second paragraph of your letter of 3rd August 1990."
In the event one or other or both parties notified Mr. MacCrindle that they required a further hearing and the award of 6th August took effect as a draft only. That further hearing took place on 6th November 1990. Thereafter Mr. MacCrindle signed a final interim award. This was dated 20th November 1990 and concluded in the same way as the previous awards save that the address was "12 Rue d'Astorg, 75000 Paris, France".
When Mr. MacCrindle was in practice at the English Bar, he was in chambers at 4 Essex court, Temple, London and he remains a "door tenant" of those chambers and, as such, has the services of their clerk. On 20th November 1990 Mr. Hiscox's solicitors were informed by the clerk by fax that the award could be taken up at those chambers on payment of the balance of the charges due and shortly thereafter they collected the award.
On 10th December 1990 Mr. Hiscox initiated the following proceedings:-
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(1) an originating summons for leave to appeal to the High Court under section 1(3)(b) of the Arbitration Act 1979.
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(2) An originating summons for an order directing Mr. MacCrindle to state further reasons for his award, pursuant to section 1(5) of the Arbitration Act, 1979.
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(3) An originating motion seeking remission of the award pursuant to section 22 of the Arbitration Act, 1950.
We are not concerned with the merits of those proceedings, which at present stand adjourned. Our concern is with Hirst J.'s decision on a preliminary objection taken by Mr. Outhwaite that this was a Convention award and under the terms of the Arbitration Act 1975, the High Court was disabled from adjudicating upon those proceedings. In summary, Hirst J. held that this was not a Convention award because, although dated in Paris, it was "made" in London for the purposes of the 1975 Act. He also said that he was inclined to accept Mr. Hiscox's contention that even if it was a Convention award he had the necessary jurisdiction to adjudicate upon those proceedings which he had initiated. Finally he held that, had it been necessary to do so, he would have accepted Mr. Hiscox's contention that Mr. Outhwaite was estopped from asserting that this award was not subject to the Arbitration Acts 1950 and 1979.
Was this a Convention award?
The Arbitration Act 1975 is, as its long title proclaims, "an Act to give effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards". The definition of a "Convention award" is contained in section 7(1) of the Act and is in the following terms:-
"'Convention award' means 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".
France and some 50 other countries including the United Kingdom are parties to the Convention.
Whether or not this was a Convention award depends solely upon whether it was "made" in France. Hirst J. was greatly impressed by an article by Doctor F. A. Mann, who needs no introduction, in the quarterly journal "Arbitration International" in April 1985. Doctor Mann expressed the view that:-
"…An award is 'made' at the place at which the arbitration is held, i.e. at the arbitral seat. It is by no means necessarily identical with the place or places where hearings are being held or where the parties or the arbitrators reside. It is rather the place fixed in the contract or the submission or the minutes of the hearing or is found to be the central point of the arbitral proceedings. It is the place which in the case of institutional arbitration will always be certain, which otherwise will only in the rarest of cases be open to doubt, and which in no reported case seems ever to have been questionable, for, as experience shows, where there could be any doubt, the arbitrators will almost invariably determine the place by agreement with the parties or if necessary by their own ruling recorded in the minutes.
This is the place which is independent of the place of meetings of the arbitrators, hearings with the parties, or of the actual signature or publication of the award. If a place other than the seat is held to be decisive, unacceptable consequences could ensue. An arbitration which...
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