Arbitration – Rent review – Lease of commercial premises — Arbitrator determining rent pursuant to rent review provisions in lease – Tenant applying for permission to appeal on point of law under section 69 of Arbitration Act 1996 – Tenant raising points relating to arbitrator’s approach to evidence – Whether points raised amounting to questions of law put fairly and squarely before arbitrator – Application dismissed
On the second review, an arbitrator determined a rent of £1.55m as at July 2009. The applicant applied to the court, under section 69 of the Arbitration Act 1996, for permission to appeal the arbitrator’s award. It contended that the arbitrator had made errors of law in: (i) having regard to post-review date “hindsight” evidence when determining the rent, contrary to established principles; (ii) taking into account speculative assumptions as to the approach of the actual tenant, 10 years earlier when the actual lease was granted and in 2009, when considering the approach that a hypothetical tenant would take in agreeing a rent for the premises as at July 2009; and (iii) treating certain assertions as to the position of a particular other retailer as relevant evidence when applying the rent review provisions of the lease.
The respondent submitted that the applicant’s contentions did not pass the threshold for permission to appeal on a point of law under section 69. It argued that section 69 imposed a higher threshold than that applicable under the previous legislation and that it was no longer open to a party to contest the findings of fact of an arbitrator on the grounds that there was no evidence, or insufficient evidence, to support those findings.
Held: Permission to appeal was refused.
None of the points on which the applicant sought to appeal met the requirements of section 69. The intention behind the 1996 Act was to curtail factual challenges disguised as legal submissions: Demco Investments & Commercial SA v SE Banken Forsakring Holding Aktiebolag [2005] 2 Lloyd’s Rep 650 and Guardcliffe Properties Ltd v City & St James [2003] EWHC 215 (Ch); [2003] 2 EGLR 16; [2003] 25 EG 143 considered. It was no longer permissible to argue that there was an error of law because the arbitrator had failed properly to consider the evidence or had admitted inadmissible evidence. Those were matters within the remit of the arbitrator. Moreover, section 69 required the questions of law to be fairly and squarely put to the arbitrator: Safeway Stores v Legal & General Assurance Society [2005] 1 P&CR 9 applied. In the arbitrator’s directions, which had led to his award, he had indicated that the parties had not to date raised any points of law that might be material to his decision. The parties had not sought to correct him and the points that the applicant now sought to raise had received no significant analysis either in the parties’ submissions to the arbitrator or in his award. None of those points involved a question of law that had been put fairly and squarely before the arbitrator. They involved the assessment of evidence by the arbitrator to determine questions of fact that were solely within his remit. There was no question of law that the arbitrator had been asked, expressly or impliedly, to determine. The arbitrator had determined the issues on the evidence put before him. It was not open to the applicant to challenge those factual decisions by dressing them up as illegitimate supposed legal arguments.
Katharine Holland QC (instructed by Pinsent Masons LLP, of Leeds) appeared for the applicant; Timothy Fancourt QC (instructed by Freshfields Bruckhaus Deringer) appeared for the respondent.
Sally Dobson, barrister
