North Range Shipping Ltd v Seatrans Shipping Corpn
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CLARKE,LORD JUSTICE KAY,Lord Justice Tuckey |
| Judgment Date | 26 March 2002 |
| Neutral Citation | [2002] EWCA Civ 405,[2001] EWCA Civ 1260 |
| Docket Number | Case No: A3/2001/0905,A3/2001/0905 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 March 2002 |
[2001] EWCA Civ 1260
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice David Steel)
Royal Courts of Justice
Strand
London WC2
Lord Justice Clarke
Lord Justice Kay
A3/2001/0905
MR RICHARD PLENDER QC (Instructed by Ince & Co, Knollys House, 11 Byward Street, London EC3R 5EN) appeared on behalf of the Applicants.
The Respondents did not appear and were unrepresented.
Monday, 16th July 2001
It is not necessary for us to give any detailed judgment on this application because we have reached the conclusion that we should adjourn the application to be heard on notice with the appeal to follow if permission is granted.
I would just simply like to add this. The reason that, for my part, I have thought that is an appropriate approach is that the application does potentially raise a number of points of importance, which include the following:
(1) whether Article 6 of the European Convention on Human Rights applies to applications for permission to appeal from arbitration awards under section 69 of the Arbitration Act 1996;
(2) if so, what is required by way of reasons from judges who consider such applications;
(3) how a party who says that a judge has not given reasons or adequate reasons should challenge them;
(4) how any such right of challenge, presumably by way of appeal under sections 6(1), 7(1)(a) and 9(1) of the Human Rights Act 1998 should be mounted;
(5) what is the correct approach of this court if it concludes that a judge in such a case has failed to give reasons, or adequate reasons, and that that failure was an infringement of a party's Convention rights under Article 6; and
(6) what is the basis of the jurisdiction of this court, if any, having regard to section 69(6) and (8) of the Arbitration Act 1996, and the decisions of this court in Aden Refinery Co v Ugland Management Co Ltd [1987] QB 650 and Henry Boot Construction v Malmaison Hotel Ltd [2001] QB 388?
I would just add, with regard to these last two points, that I for my part do not think that this court could possibly have jurisdiction to entertain an appeal from the judge's refusal to give permission to appeal against an arbitration award having regard to those subsections. Any such jurisdiction must, as I see it at present, be limited to reviewing the question whether the judge gave reasons, or possibly adequate reasons, to satisfy the parties' Convention rights to a fair "trial" under Article 6 of the Convention. In this regard I understand from Mr Plender that the owners did not invite the judge to give further reasons or suggest to him that the reasons which he has given to date amount to an infringement of their Convention rights by him. It appears to me that, before any application is heard, the owners should state in writing whether that is the position or not and give the reasons why they failed to invite the judge to reconsider his reasons.
Finally, I have not thus far changed the views which I expressed in paragraph 3 of the reasons which I gave on paper for refusing the application. For that reason, I for my part do not think it would be appropriate to grant permission to appeal but, because of the potential importance of the matters which I have tried to enumerate and because this point is likely to arise in future, I have reached the conclusion that it would be appropriate to adjourn the application to be heard inter partes so that the court may have an opportunity to consider the whole matter and perhaps to give a reasoned judgment in relation to it. I would myself think it would be appropriate that it should be heard by a three member court, either three Lords Justices or two Lords Justices and a High Court judge, and at least one of the Lord Justices should be a Lord Justice with commercial court experience.
I agree.
Order: Application adjourned. Costs reserved.
[2002] EWCA Civ 405
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
David Steel J.
Lord Justice Peter Gibson
Lord Justice Aldous and
Lord Justice Tuckey
Case No: A3/2001/0905
Mr. Richard Plender Q.C. (instructed by Messrs Ince & Co.) for the Appellant
Mr. William Godwin (instructed by Messrs Elborne Mitchell) for the Respondent
This is the judgment of the court:
S. 69 of the Arbitration Act 1996 severely limits the right of appeal to the courts. Unless all parties to the arbitration agree, the appeal must be on a question of law and with the leave of the court which:
"(3) … shall be given only if the court is satisfied –
(a) that the determination of the question will substantially affect the rights of one or more of the parties,
(b) that the question is one which the tribunal was asked to determine,
(c) that on the basis of the findings of fact in the award –
(i) the decision of the tribunal on the question is obviously wrong, or
(ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and
(d) that despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question."
There is no right of appeal to the Court of Appeal without leave of the court of first instance:
"(8) …. 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."
S. 69 (5) enables the court determining an application for leave to appeal to do so without a hearing. In The Antaios [1985] AC 191 the House of Lords said that in granting or refusing leave to appeal under the predecessor provision to s. 69 contained in the Arbitration Act 1979 the court should follow the practice of the House and say no more than that leave was granted or refused. In a lecture given in October 1987 (Reasons and Reasons for Reasons: Differences Between a Court Judgment and an Arbitration Award) [1988] 4 Arb. Int. 141) Bingham L.J. said he personally regretted that Commercial judges (to whom all applications for leave to appeal to the High Court are initially assigned) should have been enjoined against giving reasons in this way. In fact over the years the practice of commercial judges has varied. In Mousaka Inc.v Golden Seagull Maritime. Inc. [2002] 1 WLR 395 David Steel J. at p. 404 said that his practice was:
"To go further than merely refusing leave (with or without express reference to the statutory criteria) and to give some reasons why I had concluded that the arbitrators were correct (or at least not prima facie wrong) on the merits."
However, having discovered a substantial variation in practice amongst commercial judges he said he had decided to adopt a common approach which was simply to refer to the statutory criteria.
The question which arises in this case is what the practice should now be in the light of Article 6 ECHR, although we first have to decide what if any jurisdiction we have to consider this question.
The way in which this question comes before the court is as follows. The applicant is the owner of the MV Western Triumph which it chartered to the Respondent on the NYPE form. It purported to terminate the charter for non-payment of hire and withdrew the vessel. The charterer contended that it was not entitled to do so because it had not given proper notice under the anti-technicality clause in the charter. This clause said:
"When hire is due and not received, the Owners, before exercising the option of withdrawing the vessel from the Charter Party, will give Charterers three banking days' notice …."
The dispute was referred to arbitration. The arbitrators (Sir Christopher Staughton, Alexander Kazantzis and Sir Brian Neill) found that the notice had been sent before the hire became due. It had been sent by e-mail but, because of some fault in the system, it did not enter the charterer's mailbox until after the hire became due. One of the issues which the arbitrators were asked to decide was:
"When did the notice become effective?"
The possibilities were when it was sent, when it entered the recipient's mailbox or when it was first read. This, the arbitrators said, was a question of considerable general importance. However, they said:
"On the facts of this case we consider the crucial matter to be determined is whether the Owners were entitled to give the notice at the moment when it was sent."
They answered this question by saying:
"It is established as a matter of law that one cannot give a notice that hire is due and not received until the hire has become overdue: see The Afovos by Lord Hailsham at p.339."
They therefore concluded that the notice was invalid because it was premature.
The Applicant appealed to the High Court contending that the appeal raised three questions of law, the first two of which were said to be of general public importance. They were:
1 Is a notice given pursuant to an anti-technicality clause in a time charter party at the time that it is sent or at the time that it is received?
2 Assuming that the answer to the first question...
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