North Range Shipping Ltd v Seatrans Shipping Corporation
| Jurisdiction | England & Wales |
| Judge | Peter Gibson,Aldous,Tuckey L JJ |
| Judgment Date | 26 March 2002 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 March 2002 |
Court of Appeal (Civil Division).
Peter Gibson, Aldous and Tuckey L JJ.
Richard Plender QC (instructed by Ince & Co) for the appellant.
William Godwin (instructed by Elborne Mitchell) for the respondent.
Aden Refinery Co Ltd v Ugland Management Co LtdELR [1987] QB 650.
Afovos, TheWLR [1983] 1 WLR 195.
Antaios, TheELR [1985] AC 191.
Garcia Ruiz v SpainHRC (2001) 31 EHRR 22.
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [2000] CLC 1689; [2001] QB 388.
Hiro Balani v SpainHRC (1995) 19 EHRR 566.
Morris v UKHRC (1988) 10 EHRR 205.
Mousaka Inc v Golden Seagull Maritime Inc [2001] CLC 1716; [2002] 1 WLR 395.
Pamela, TheUNK [1995] 2 Ll Rep 249.
R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2)ELR [2000] 1 AC 119.
Tolstoy v UKHRC (1995) 20 EHRR 442.
Webb v UKHRC (1997) 24 EHRR CD 73.
X v Federal Republic of Germany [1981] 25 DR 240.
Shipping — Arbitration — Appeal — Human rights — Appeal to Court of Appeal from refusal of permission to appeal against arbitration award — Whether Court of Appeal had jurisdiction to remit application for permission to appeal to different judge because judge's reasons for refusing permission to appeal were inadequate — Whether judge had obligation to give reasons when refusing permission to appeal in arbitration proceedings — European Convention on Human Rights, art. 6 — Arbitration Act 1996, s. 69 — CPR, r. 52.10(2)(a).
This was an appeal from a judge's decision to refuse permission to appeal to the High Court from a decision of arbitrators.
Owners “North Range” chartered their vessel to “Seatrans” on the NYPE form. North Range purported to terminate the charter for non-payment of hire and withdrew the vessel. Seatrans contended that North Range was not entitled to do so because it had not given proper notice under the anti-technicality clause in the charter which provided that when hire was due and not received owners, before exercising the option of withdrawing the vessel from the charter, would give charterers three banking days' notice. Arbitrators found that the notice, which had been sent by e-mail, had been sent before the hire became due and was therefore invalid because it was premature, applying The AfovosWLR [1983] 1 WLR 195. Owners appealed arguing that the appeal raised questions of law of general public importance, namely whether a notice pursuant to an anti-technicality clause was given when it was sent or when it was received and as to when a notice sent by e-mail was received by the recipient. David Steel J determined the application for leave to appeal without a hearing. He held that the arbitrators' conclusion that the notice was premature when given, meaning sent or despatched, was not open to serious doubt and that the second question therefore did not arise. After an oral hearing the judge re-affirmed his earlier decision without adding to the short reasons already given, and refused permission to appeal to the Court of Appeal. Owners applied for permission to appeal. Owners conceded that the Court of Appeal had no jurisdiction to consider an appeal against the judge's decision to refuse permission to appeal from the arbitrators' award but submitted that the Court of Appeal could remit the application for permission to appeal for rehearing by a different judge because David Steel J's reasons were inadequate.
Held giving permission to appeal and dismissing the appeal:
1. By virtue of the Human Rights Act 1998 the court was required to give the applicant a right of appeal to enable it to complain that the process by which the judge reached his decision to refuse permission to appeal was unfair and contrary to art. 6 of the European Convention on Human Rights. The residual discretion of the Court of Appeal to set aside decisions under CPR, r. 52.10(2)(a) was directed in such a case to the integrity of the decision making process and did not involve an attack on the decision itself. The court therefore had jurisdiction to consider the appeal and would grant permission to appeal.
2. Parties to a consensual arbitration waived their art. 6 rights in the interests of privacy and finality. It was not contended that the limitations on the right of appeal to the courts themselves under s. 69 of the Arbitration Act 1996 offended art. 6, but it was common ground that the article applied to the statutory appeal process and could be invoked by the applicant.
3. Section 69(3) contained a variety of threshold tests and the unsuccessful applicant for leave should be told which of those tests he had failed. The judge did not need in every case to go further and explain why the relevant threshold test had been failed. If the question was not one of law, did not substantially affect the rights of one or more of the parties or was not one the tribunal had been asked to determine, an adequate reason for the judge's decision would in almost all cases have been given simply by identifying the test or tests which the applicant had failed. The same applied to the question of general public importance. However in relation to whether the tribunal's decision was not obviously wrong or not open to serious doubt, it might not always be enough simply to refer to the statutory test. It would be enough for the judge to uphold the arbitrators' reasons. Otherwise it might be necessary to go further. But any further reasons needed only be brief so as to show the losing party why he had lost. (The Antaios [1985] AC 191 considered.)
4. In this case the judge gave an entirely adequate reason for his decision. The arbitrators distinguished the validity of the notice at the time it was sent from the time at which it took effect. Only the latter was of public importance because the notice was sent by e-mail, but the arbitrators did not decide anything about that. They did decide that the notice was invalid because no hire was due when it was sent, applying The Afovos. That was not a question of public importance.
(Delivered by Tuckey LJ)
1. Section 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.”
2. Section 69(5) enables the court determining an application for leave to appeal to do so without a hearing. In The AntaiosELR[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 LJ 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[2001] CLC 1716 at p. 1723; [2002] 1 WLR 395 at p. 404 David Steel J 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...
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