On 2 October 2025, Paul Mitchell KC (sitting as a Deputy High Court Judge) handed down judgment on the claimant’s challenge under Section 68(2)(a) of the Arbitration Act 1996 (“the Act”) in the case of Macintyre Hudson LLP v. Shiran Wynter [2025] EWHC 2497 (Comm) where Stuart Benzie and Matthew Tonnard acted for the successful defendant (instructed by Mike Cummins and Fabienne McAllister of Michael Cummins Employment Solicitors). The decision contains important guidance for arbitration practitioners when considering challenges to arbitration awards where serious irregularity is alleged.

The Decision

The judge held that the English authorities have made it clear that Section 68 of the Arbitration Act exists to provide protection of last resort. The judge further held that  an application could not be brought unless the appellant had first complied with Section 70(2) of Act, which requires that before making an application under Section 68, a party must have first: (1) exhausted any available arbitral process of appeal or review; and (2) any available recourse under Section 57 of the Act to correct or clarify an award.

In the current case, the judge found that the failure to adopt the Section 57 process was fatal to the Claimant’s application and he further found that application in this case was abusive of the right to bring an application of last resort (Judgment paragraph [65]).

Comment

The English courts have regularly stressed the importance of finality in the arbitration process (The Magdalena Oldendorf [2008] 1 All ER (Comm) 1015 (Waller LJ at paragraphs [35] to [38]). As held by the judge in this case, Section 68 is only available as a last resort where “…a tribunal had gone so wrong in its conduct that justice calls out for its decision to be corrected” (Ramsey J in London Underground Ltd v Citylink Telecommunications Ltd [2007] 2 All ER (Comm) 694 [42]).

Consequently, challenges under Section 68 are rare, and successful challenges very rare indeed. The 2023-2024 Commercial Court records that in that period a total of 37 applications were made (an increase of 34% from the previous year). However, of those 37 applications, none succeeded and all of the 27 of the applications made in 2022-2023 also failed (three settled).

In the rare circumstances where a party is considering an application under Section 68, it is vital that they first use the process set out in Section 57 of the Act to seek a correction or clarification or to remove any ambiguity in the award or to make a further award to address any claim that was before the tribunal but not dealt with in the existing award. Absent such compliance, any challenge under Section 68 will fail.

Read the full judgment here.