Arbitration Act 1979, section 1(7) — Whether Court of Appeal can review refusal of High Court judge to grant a certificate under para (b) of section 1(7) that the question of law to which his decision relates either is one of general public importance or is one which for some other special reason should be considered by the Court of Appeal — Applicants in this case wished to appeal against a decision of Walton J in an appeal against an arbitration award in a rent-review dispute — Walton J refused to give leave to appeal to the Court of Appeal and refused to certify under para (b) — Held that there was a clear antithesis in section 1(7) of the 1979 Act between leave to appeal, which can be granted alternatively by the High Court and the Court of Appeal, and the certificate, which can be granted only by the High Court — The Court of Appeal accordingly had no jurisdiction to consider an appeal from the refusal of a High Court judge to grant a certificate under section 1(7)(b) — Application dismissed
This was an
application to the Court of Appeal for an order that an appeal against a
refusal of Walton J to grant a certificate under section 1(7)(b) of the
Arbitration Act 1979 be set down. The application followed the refusal of the
Registrar of Civil Appeals to set down the appeal. The applicants before the
Court of Appeal were Arthur Young McClelland Moores & Co and the
respondents were the National Westminster Bank plc as trustees for British Rail
Pension Trustee Co Ltd and PosTel Properties Ltd. The judgment of Walton J
against which the applicants wished to appeal was reported at (1984) 273 EG
402.
Andrew Morritt
QC and Jonathan Gaunt (instructed by Freshfields) appeared on behalf of the
applicants; Terence Cullen QC and Miss Hazel Williamson (instructed by Maxwell
Batley & Co) represented the respondents.
Giving
judgment, SIR JOHN DONALDSON MR said: This application arises out of the
refusal of the learned Registrar of Civil Appeals to set down an appeal from a
decision of Walton J. Walton J had been concerned with an appeal against an
arbitration award in a rent-review dispute. The matter came before him under
section 1 of the Arbitration Act 1979, leave to appeal on questions of law
having been granted by Leggatt J. Walton J dealt with the issues of law and
gave judgment. The applicants were dissatisfied with his judgment in point of
law and wished to appeal further to the Court of Appeal. Section 1(7) of the
Arbitration Act 1979 thereupon became relevant. This provides:
No appeal
shall lie to the Court of Appeal from a decision of the High Court on an appeal
under this section unless —
(a) the High Court or the Court of Appeal gives
leave; and
(b) it is certified by the High Court that the
question of law to which its decision relates either is one of general public
importance or is one which for some other special reason should be considered
by the Court of Appeal.
Walton J
refused to give leave under para (a) and he refused to certify under para (b).
As to his
refusal of leave, that by itself is not in any way fatal because there is an
alternative provided, namely the giving of leave by this court. But the view
was taken by the learned registrar that the failure to obtain a certificate was
a fatal bar to the jurisdiction of this court. Manifestly his decision had to
be subject to some form of review, and the most convenient way to achieve that
review was for there to be an application to the full court for an order that
the appeal be set down, and that is the application with which we have been
concerned.
It is
submitted by Mr Morritt for the applicants that the court has jurisdiction to
review the learned judge’s refusal to grant a certificate because, as he
submits, the decision to which section 1(7) applies is the underlying decision,
namely a decision on questions of law raised in the arbitration. That
subsection has no application to the grant or refusal of a certificate, which
is a decision of the High Court to which section 16 of the Supreme Court Act
1981 would apply. He further draws our attention to the fact that in The
Nema [1980] 1 Lloyd’s Rep 519 Lord Denning MR, giving the judgment of the
court at p 522, held that this court had jurisdiction to review a discretionary
decision by a High Court judge whether to grant or refuse leave to appeal to
the High Court, a judgment which was reversed by Parliament by including a new
section 1(6A). Mr Morritt submits that, in the absence of an equivalent
subsection in section 1 of the Act, we should be persuaded by the decision of
this court in The Nema to take a similar line.
It is not
apparent to what extent the matter was argued below; and, in any event, the
problem with which we are faced is different, because, as was pointed out by my
lord, Sir John Megaw, in argument, in section 1(7) there is a direct and clear
antithesis between leave which can be granted alternatively by the High Court
and the Court of Appeal and the certificate which can only be granted by the
High Court. In the face of that antithesis and the decision of the House of
Lords in Gelberg v Miller [1961] 1 WLR 459 in the context of
similar provisions for criminal appeals, where Lord Simonds said that the whole
purpose of section 1(2) of the Administration of Justice Act 1960 is to ensure
that leave to appeal shall not be granted unless it is certified by the court
below that a point of public importance is involved, I have no doubt at all
that on the true construction of section 1(7) this court has no jurisdiction to
consider an appeal from a refusal by a judge of the High Court to grant a
certificate under the Act.
Accordingly I
would rule that the learned registrar was correct in refusing to set down this
appeal.
NEILL LJ
agreed.
Also agreeing,
SIR JOHN MEGAW said: If — and I think it is a very big ‘if’ — the decision of
this court in The Nema were properly to be regarded as (i) laying down a
principle applicable to section 1(7) of the Arbitration Act 1979 and (ii)
having decided that in those circumstances this court had jurisdiction to grant
a certificate or to require the High Court to grant a certificate when the High
Court had refused such certification, then, in my view, with the greatest
possible respect, the decision in The Nema would have been arrived at per
incuriam.
The
application was dismissed with costs.
