BLCT v. J.Sainsbury

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BLCT (13096) Ltd v J Sainsbury Plc
English Court of Appeal: Lady Justice Arden, Lord Justice Longmore: [2003] EWCA Civ 884: 30 June 2003
Michael Barnes QC and Jonathan Seitler QC, instructed by Nabarro Nathanson, for the appellant (BLCT)
Jonathan Gaunt QC, instructed by Denton Wilde Sapte, for the respondent (Sainsbury)
Appeal from arbitration: Arbitration Act 1996, section 69: application for leave to appeal the award under s.69(5): no oral hearing under s.69(5): refusal to grant an oral hearing: leave to appeal refused under s.69(6): Court of Appeal's jurisdiction to give leave: Residual jurisdiction: right to a fair trial, Art. 6(1), European Convention on Human Rights: whether limitation on rights of appeal under Arbitration Act 1996 S.69(6) inconsistent with Art. 6: Whether Art. 6 required an oral hearing of appeal application
The court refused BLCT's  application to appeal against the refusal of a High Court judge of an application for an oral hearing against refusal of leave to appeal against an arbitral award on a point of law. It held that s 69(6) of the Arbitration Act 1996 – requiring the leave of the court for any appeal from its decision to grant or refuse leave to appeal - did not deny the right to a fair trial under Art 6(1) of the European Convention on Human Rights. Where leave to appeal was sought on a question of law, which did not raise (for example) issues of a party's credibility, or of fact, Art 6 "does not require an oral hearing of an application for leave to appeal against an arbitral award save in exceptional circumstances" which did not exist in this case.

DMC Rating Category: Developed

Case note contributed by Ann Moore, Law Correspondent for Fairplay International Shipping Weekly and contributor to this website

In an arbitration relating to a rent review of property used as a food superstore and leased by BLCT to Sainsbury, the sole arbitrator decided the issues in May 2002 in Sainsbury's favour. BLCT applied to the Commercial Court for permission to appeal against the award on a point of law. It alleged the arbitrator had misunderstood certain legal concepts, including that of the "hypothetical willing lessee", and the role of premium payments in determining a market rent on the basis of comparability with other similar properties in the vicinity, and that these were issues of general public importance. The financial impact on BLCT of the arbitrator's decision was about £1.775m. The Commercial Court transferred the matter to the Chancery Division. The judge there dealt with the matter on paper. He refused leave to appeal, saying the questions of law were not clear, that the award was "not obviously wrong" and did not raise an issue of general public importance. BLCT then applied under Civil Procedure Rules 52.3(4) for an oral hearing of the judge's refusal of permission to appeal. CPR 52.3(4) provides that where the appeal court, without a hearing, refuses permission to appeal, the applicant may request the decision to be reconsidered at a hearing. Alternatively, BLCT asked for leave to appeal to the Court of Appeal against the judge's order under the 1996 Arbitration Act, s.69(6). That sub-section provides that "the leave of the court is required for any appeal from a decision of the court under this section to grant or refuse leave to appeal."

The judge responded that CPR 52.3(4) was subject to s.69 of the Arbitration Act "which creates the right of appeal on a point of law subject to [the section's] conditions". Under s.69(5), the "court shall determine an application for leave to appeal under this section without a hearing unless it appears to the court that a hearing is required." The judge then held that "The ordinary rules relating to a renewal of an application for permission to appeal refused on paper do not ... apply to a decision under s.69(6)". He did not consider that a hearing was required.

BLCT then applied to the court for leave to appeal to the Court of Appeal against the judge's refusal to give leave to appeal the arbitrator's award, and asked for an oral hearing on the application. The judge dealt with the matter on paper and refused leave to appeal. In reliance on s.69 of the Arbitration Act, he reiterated that the case was not "one of general importance or one which for some other special reason should be considered by the Court of Appeal".

BLCT filed notice of appeal with the Court of Appeal. The appeal court directed that the application for permission to appeal against the judge's refusal should be heard, as the court's jurisdiction to grant permission in such a case should be clarified.

BLCT submitted that, while it had no right under the 1996 Act to appeal to the Court of Appeal against a refusal of leave, or against an arbitral decision, or to ask the court for leave, it was entitled to an oral hearing under Art. 6 of the European Convention on Human Rights, in the absence of special circumstances. Art. 6(1) of the Convention provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….."

BLCT relied on precedents from the Strasbourg Court of Human Rights.

As regards jurisdiction, BLCT relied on the English Court of Appeal ruling in North Range Shipping v Seatrans Shipping [2002] 1 WLR 2397 at 2403 per Tuckey LJ,  that the court had a "residual jurisdiction ... to set aside the judge's decision under section 69 in a case of unfairness."

BLCT further argued that it should have the right to have the judge's refusal of leave reconsidered at an oral hearing (saying that s.69(5) did not prevent this) and that s.69(6) was incompatible with Art. 6 of the Convention because it conferred no right of appeal in the present case, and because there was no right to an oral hearing below.

Sainsbury's case was that once the issue had been decided on paper, the judge's authority to determine the application was "exhausted". CPR 52 3(4) was subject to the judge's power under s.69(5) to do so without a hearing, unless he considered one was required. There was no prospect of success because the judge had full particulars of the application and was correct in deciding an oral hearing was unnecessary. Sainsbury's relied on the North Range Shipping decision for the propositions that; (1) parties to a consensual arbitration waive their Art. 6 rights, in the interests of privacy and finality; (2) Art. 6 does not guarantee a right to appeal; (3) the limitations imposed by the Arbitration Act on the right to appeal to the courts do not themselves offend Art. 6; (4) Art. 6 does apply to the statutory appeal process and (5) the way in which it applies to court proceedings depends on the special features of the proceedings in the domestic jurisdiction and the role of the appellate court in those proceedings.

Lady Justice Arden gave a judgment with which Longmore LJ concurred.

In North Range v Seatrans the court had stated that recourse to the courts by way of appeal was a last resort in arbitration proceedings, and was "severely limited by statutory provisions which do not offend Art. 6." Parties to arbitration had chosen the "commercial advantages of finality and privacy, which does not involve such [court] hearings."

That holding was, she held, authority for two further propositions, "one explicit and one implicit. That statutory provisions limiting the right of appeal from an arbitral award do not offend Art. 6 as a general proposition. The parties have chosen that course and, by implication, it is open to the parties to agree to waive the protection of a public hearing and public pronouncement of the decision to which they would otherwise be entitled under Art. 6. Moreover, where Art. 6 is satisfied by proceedings at first instance, there is no Convention requirement on the state to provide an appeal process."

The residual jurisdiction of the court to intervene in the event of unfairness was, Arden LJ said, a residual jurisdiction to intervene to ensure that the process of reaching a decision under s.69(5) complied with Art. 6 and that the hearing of that application was a "fair…hearing" for the purposes of that Art.. "A hearing which violated the appellant's right under Art. 6(1) to a fair trial would constitute unfairness for the purpose of the Seatrans case."

In her opinion, there was no real prospect of success in the argument that an application determined on a paper application under s.69(5) could be reconsidered at an oral hearing. The section provided that "The court shall determine an application for leave to appeal under this section without a hearing unless it appears to the court that a hearing is required". An oral hearing could not be requested after there had been a paper determination.

Nor could she accept that it was a requirement of Art. 6 that there should be an oral hearing, unless there were exceptional circumstances in the case. In this case there had been a full hearing before the arbitrator. The hearing was before an independent tribunal, each side had had the opportunity to put its case and knew the evidence of the other party. The arbitrator gave reasons for his award. The proceedings were in private. This was apparently contradictory to Art. 6 but the parties had waived their right to assert this was a violation by virtue of their agreement to arbitrate.

In her view, in order to determine whether an oral hearing was necessary for the purposes of Art. 6, it was necessary to examine the nature of the application. In this case, the question on which leave to appeal was sought was a question of law. There was no question of a decision on the facts, nor was a party's credibility in issue. In those circumstances, Art. 6 did not require an oral hearing of an application of leave to appeal against an arbitral award, unless there were special circumstances. None, she found, existed here. The general point that there is value in oral argument was not, of itself, strong enough. Whilst good advocacy was an essential requirement for doing justice in an individual case, there were countervailing considerations in the 1996 Act, section 1(c) of which articulated the principle that "in matters governed by this Part the court should not intervene except as provided ...".

As regards the need for an oral hearing of applications under s.69(5), it was impossible to lay down guidelines other than that the judges should seek to determine them "without unnecessary delay or expense", as provided by s.1(a) of the 1996 Act.

The court rejected BLCT's submission that s.69(6) of the Act was incompatible with Art. 6 of the Convention because (a) it conferred no right of appeal in the present case and (b) there was no right to an oral hearing below. As regards (a), the answer lay, not in any incompatibility of the Act with the Convention, but in the residual jurisdiction of the court articulated in the North Range case. As for (b), although Art. 6 conferred the right to "a fair and public hearing", that did not necessarily mean a hearing which the litigant was entitled to attend. It all depended on the nature of the application.

BLCT's application was accordingly refused.


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