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Osler v Osler [2023] EWHC 1270 (Ch)

Dov Ohrenstein, instructed by Roythornes Solicitors appeared for the successful respondents in Osler v Osler [2023] EWHC 1270 (Ch) in which HHJ Monty KC (sitting as a High Court Judge) handed down judgment today on the question of whether or not the court can entertain a renewed oral application for permission to appeal an arbitral award where an order had been made on the papers refusing permission to appeal which went on to state that the applicant had the right to apply to set aside or vary that order.

Under s.69(5) of the Arbitration Act 1996 and paragraph 12.12 of the practice direction to CPR 62 applications for leave to appeal against arbitral awards are normally determined on paper. In this case, and in accordance with the usual practice, Mrs Joanna Smith J had made a decision on the papers refusing permission to appeal for which she gave brief reasons. However, her order surprisingly included the following wording:

“This Order has been made by the court without a hearing pursuant to CPR PD 52B paragraph 7.1. Any party affected by the order may apply to have it set aside or varied within 7 days of the date of service upon that person.”

The reference in the order to CPR PD52B was plainly an error as CPR 52 as that practice direction has no application to appeals under the 1996 Act,  see BLCT (13096) Limited v J Sainsbury Plc [2003] EWCA Civ 884.

Arbitral appeals are governed by CPR 62. Importantly, there is no provision in CPR Part 62 or PD 62 granting an unsuccessful applicant who is seeking to appeal an arbitral award the right to a renewed oral hearing. The decision of Calver J in WSB v FOL [2022] EWHC 586 (Comm) makes clear that once an application for permission to appeal an arbitral award has been refused on paper, there should be no oral rehearing of that application. That is different to the situation that applies to appeals from the County Court and High Court decisions under CPR 52.

HHJ Monty KC therefore held in Osler that the provision in Mrs Joanna Smith J’s Order permitting an application to set aside or vary should be set aside under the slip rule and CPR 3.1(7). He decided that even though the error was in a final order.

He also held that even if he was wrong and the slip rule or CPR 3.1(7) could not be deployed, he still had no power to reconsider the merits of Mrs Joanna Smith J’s decision to refuse permission to appeal because the Court cannot permit a jurisdiction to have an oral rehearing to be conferred by an order where it is clear on the authorities and under the Act that such jurisdiction does not exist. He therefore also decided he should also dismiss the application on that basis.

In short if, by a decision on the papers, a party is refused permission to appeal against an arbitral award there is no opportunity for second bite at the cherry to reargue the permission application at a hearing even if the order says that a second bite is available!

Read the full judgment here.