Section 69 of the Arbitration Act 1996: only one bite at the cherry

The Court of Appeal has no jurisdiction to hear an appeal on a point of law under section 69(6) of the Arbitration Act 1996 where permission to appeal is not granted by a lower court. That is the decision of the Court of Appeal in Osler v Osler and others [2024] EWCA Civ 516. The case arose from an arbitration in relation to a farming partnership established in February 1982 to farmland in Southery, near Downham Market in Norfolk. The partners were the appellant Kevin Osler and his brother Roger, who died in June 2019. The respondents were Roger’s executors. The partnership deed entitled Kevin to purchase Roger’s share in the capital and assets of the partnership from his estate. The amount to be paid was the capital and undrawn profits standing to Roger’s account in accounts to be drawn up as at 5 April 2019. However, the basis on which the accounts were to be prepared was not agreed. Kevin argued that they should be based on the historic cost of assets, the method consistently applied prior to Roger’s death. The executors insisted they should be based on current market value which would make a significant difference to the purchase price under the option. The arbitrator decided in favour of the estate. Kevin sought permission to appeal the arbitrator’s decision under section 69 of the Arbitration Act 1996, which was refused by Joanna Smith J on paper. In error, the order contained reference to any person affected by it being entitled to apply to have the order set aside or varied within seven days. Kevin then applied to set aside the judge’s order. That application was dismissed at an oral hearing by HHJ Monty on the basis that Joanna Smith J’s paper refusal was an end of the matter under section 69 despite the liberty to apply wording included in error. He also refused permission to appeal to the Court of Appeal. Kevin obtained such permission from a single judge of the Court of Appeal. The Court of Appeal decided that it had no jurisdiction to hear the appeal because permission to appeal under section 69(6) had to be granted by the High Court. The application before HHJ Monty was a renewed oral application for permission to appeal and his order to dismiss the application was a decision to refuse leave to appeal from the arbitrator’s decision under section 69. Leave of that court, rather than the Court of Appeal, was required and had been refused. Louise Clark is a property law consultant and mediator