Ums Holding Ltd and Others v Great Station Properties S.A. and Another Stremvol Holdings Ltd
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Teare |
| Judgment Date | 06 October 2017 |
| Neutral Citation | [2017] EWHC 2473 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2016-000354 |
| Date | 06 October 2017 |
[2017] EWHC 2473 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
Mr. Justice Teare
Case No: CL-2016-000354
and
And In The Matter of an Arbitration
John Brisby QC and Tom Gentleman (instructed by Hogan Lovells International LLP) for the Claimants/Arbitration Respondents
Daniel Jowell QC and Richard Eschwege (instructed by Skadden Arps Slate Meagher & Flom LLP) for the Defendants/Arbitration Claimants
Hearing date: 5 October 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Yesterday I handed down judgment in this section 68 challenge to an arbitration award; see [2017] EWHC 2398 (Comm). Three ancillary matters arose for decision upon which I required time to reflect. These are my rulings on those issues. I set out my reasons in short form to avoid further delay in resolving these matters.
Permission to appeal
The Grigorishin Respondents sought permission to appeal. It is to be noted that unless they secure permission to appeal from this court that is the end of the matter. This restriction on an appeal reflects the intention of the legislature that parties to arbitration should be free from unnecessary delay and expense; see Itochu Corp. v Johann MK Blumenthal GMBH [2012] EWCA Civ 996 at paragraphs 17–18 per Gross LJ.
Mr. Brisby's first ground for seeking permission to appeal was that there was a conflict of opinion between judges of the Commercial Court as to whether in an exceptional case a serious irregularity within section 68 can extend to a failure to take account of evidence; see paragraphs 17 to 27 and paragraph 31 of my judgment. In such a case he said there must be a real prospect that an appeal will succeed. Alternatively, he said that the fact that there is such a disagreement is "some other compelling reason" for an appeal even if there is no real prospect of success; cf Shared Network Services Limited v Nextiraone UK Limited [2012] EWCA Civ 1171 at paragraphs 1–2 per Lewison LJ.
I do not consider there is a real prospect of success because of the difference of judicial opinion to which I referred in my judgment. First, the opinions of Toulson J. and Akenhead J. were obiter dicta. This is not a case of conflicting decisions. Second, for the reasons explained in paragraphs 28–31 of my judgment the court could only conclude that the Tribunal had overlooked evidence by itself considering all of the relevant evidence. That would be an impermissible exercise for the reasons I have given, as has been held by Flaux J. and Cooke J. There is no suggestion in the obiter dicta of Toulson J. and Akenhead J. that they envisaged the court embarking upon such an exercise. Third, I consider it fanciful to suggest, in circumstances where it is well-established that the reach of section 68 is limited, that the Court of Appeal might consider that such an exercise was an appropriate exercise for the Commercial Court to embark upon.
For the same reasons I do not consider that the obiter dicta of Toulson J. and Akenhead J. are "some other compelling reason" for granting permission to appeal. In circumstances where it is fanciful to suggest that granting permission to appeal would result in the Court of Appeal saying that it was permissible for the Commercial Court to consider and evaluate the evidence before the Tribunal in order to determine whether the Tribunal had overlooked evidence the grant of permission to appeal would merely lead to unnecessary delay and expense which it is the aim of the Arbitration Act to avoid. Thus the observations of Toulson J. and Akenhead J. are not, in the context of an arbitration application, a "compelling" reason for granting permission to appeal.
Mr. Brisby relied upon three further matters.
First, he submitted that there is a real prospect that the Court of Appeal might reach a different view from that which I reached in paragraph 93 of my judgment, namely, that the footnote to paragraph 175 of the Award undermined the allegation that the Tribunal did not have the board minutes in mind. He said this was an important point which went both to the existence of the Illicit Scheme and to the question whether there had been a breach of the JVA. However, I consider it fanciful to suggest that the Court of Appeal would reach a different view. The footnote referred to the board minutes and the Tribunal chose to insert that footnote in the text of the Award. Moreover, when one has regard to the whole of paragraph 175 it is apparent that the Tribunal had in mind a range of evidence which showed that the "whole arrangement was opaque" and thus, as I said in paragraph 94 of my judgment, this challenge requires the court to consider the entirety of the evidence on the subject which was before the tribunal. That is in my judgment an impermissible exercise and I consider it fanciful to suggest that the Court of Appeal would regard such an exercise as permissible.
Second, Mr. Brisby submitted that there was a real prospect that the Court of Appeal might take a different view of Ground E5; see paragraphs 121–127 of my judgment. I disagree. The terms of the Closing Submissions show that the Tribunal decided the issue which it reasonably thought had been put before it. In any event the Tribunal implicitly rejected the case that the resignations had been procured with the aim of pressurising the Grigorishin Respondents to accept a less favourable constitution of the board.
Third, Mr. Brisby suggested that there was a real prospect that the Court of Appeal might decide that there was a serious irregularity where a conclusion of the tribunal was manifestly illogical and could not rationally be sustained. Mr. Brisby's submission was based upon the decision of Sales J. in Metropolitan Property v Amore Investments [2008] EWHC 2925 (Ch) which he suggested might appeal to the Court of Appeal. However, since there is the highest authority for the proposition that it is not a serious irregularity to reach the wrong conclusion I do not consider that there is a real prospect of success on this issue; see paragraph 38 of my judgment.
Standing back from the detail of Mr. Brisby's submissions and looking at the application for permission to appeal more generally this section 68 challenge was always bold and optimistic in circumstances where the reach of section 68 is well known to be limited. All of the Grigorishin Respondents' challenges to the Award were debated in a hearing lasting almost 4 days. I...
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...involve the court in assessing the evidence to decide if it has been overlooked: UMS Holdings Ltd v Great Station Properties SA [2017] EWHC 2473 (Comm); [2017] 2 Lloyd's Rep. 448, [31], per Teare J. Here the tribunal explained in the memorandum of clarification why the evidence about the S......
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