Andrew v The Federal Republic of Nigeria: Non-Party Appeal Rights and Procedural Fairness in Section 68 Arbitration Challenges

Introduction

This commentary examines the Court of Appeal’s judgment in The Federal Republic of Nigeria v Process & Industrial Developments Ltd ([2025] EWCA Civ 715), focusing on Mr Seamus Andrew’s attempt as a non-party to appeal adverse findings against him. The proceedings arose out of:

• An arbitration under a 2010 Gas Supply and Processing Agreement between P&ID and Nigeria.
• A 2017 arbitral Award of US$6.6 billion in favour of P&ID for Nigeria’s alleged breach.
• A section 68 challenge in the High Court seeking to set aside the Award on grounds of fraud, bribery and improper retention of Nigeria’s privileged documents.
• A detailed first-instance judgment (23 October 2023) finding P&ID’s case procured by fraud and setting aside the Award.
• An application by Mr Andrew (who acted for P&ID in the arbitration and later became a P&ID director) for permission to appeal critical findings against him.

Mr Andrew claimed breaches of his rights under Articles 6 and 8 ECHR and of common-law fairness. He sought to challenge findings that he knowingly retained and benefited from Nigeria’s privileged documents, lied about their origin, and was motivated by greed. The Court of Appeal refused permission.

Summary of the Judgment

On 1–2 May 2025 the Court of Appeal, by a majority, dismissed Mr Andrew’s application for permission to appeal. The key holdings were:

1. Out of Time: The Appellant’s Notice was filed 38 days late without good reason. The Court declined relief from sanctions under CPR 3.9.
2. No Section 68(4) Permission: Under section 68(4) Arbitration Act 1996, any appeal against a section 68 decision requires first-instance leave. Mr Andrew had not obtained it; the Court had no jurisdiction to hear his appeal.
3. No ECHR Breach: Articles 6 and 8 were not engaged, or if engaged were not breached. The allegations against Mr Andrew were fully pleaded, he gave evidence, faced cross-examination, saw the draft judgment, and had advice from leading counsel. The process was fair.
4. Non-Party Appeals Exception: The exceptional In re W jurisdiction applies only where a non-party faces unforeseen, unpleaded criticism outside the litigation’s scope. Here, the adverse findings were integral to Nigeria’s pleaded case.
5. Discretionary Refusal: Even if arguable, permission would be refused in the interests of finality, absence of party support, and availability of disciplinary proceedings before the Solicitors Disciplinary Tribunal as an alternative remedy.

Analysis

Precedents Cited

• Section 68(2)(g) & (4), Arbitration Act 1996: leave requirement and fraud grounds for setting aside awards.
• In re W (A Child) [2016] EWCA Civ 1140; [2017] 1 WLR 2415: exceptional non-party appeal where unpleaded criticisms breach convention rights.
• Gray v Boreh [2017] EWCA Civ 56: refusal of non-party appeal by solicitor who misled court—no jurisdiction absent permission and no “substantive interest.”
• Cie Noga SA v ANZ Banking Group [2003] 1 WLR 307: no appeal against findings not amounting to an order or decision affecting substantive rights.
• Simetra v Ikon Finance [2019] EWCA Civ 1413: minimum content of judicial reasons for fairness.
• Popely v Ayton [2022] EWHC 3217 (Ch): fitness of Article 8 to protect non-parties from unpleaded adverse findings.
• White v Withers [2009] 1 FLR 383 and Imerman v Tchenguiz [2011] Fam 116: family law “Hildebrand” rules on disclosure of illicitly obtained documents.
• Lisle-Mainwaring v Associated Newspapers [2018] 1 WLR 4766 and McDonald v Rose [2019] EWCA Civ 4: lower-court jurisdiction for permission applications.
• National Iranian Oil Co v Crescent [2024] 1 WLR 71 and Manchester City v FA Premier League [2021] 1 WLR 5513: scope of appeal bar in sections 67/68.

Legal Reasoning

The Court’s reasoning unfolded in three stages:

1. Time and Procedure: Mr Andrew’s Appellant’s Notice was filed long after the 21-day CPR 52.12 deadline with no valid excuse. He failed to follow the judge’s direction to make a formal written application for permission before hand-down. Relief from sanctions under CPR 3.9 was declined as his conduct was disruptive and unjustified.
2. Jurisdiction—Section 68(4): Section 68(4) mandates first-instance leave for any appeal from a setting-aside decision. The test for what constitutes “a decision under this section” includes all findings integral to the section 68 outcome. Absent lower-court permission, the Court of Appeal lacked jurisdiction.
3. ECHR Rights and Non-Party Exception: Articles 6–8 do not grant freestanding appeal rights to a witness or non‐party. In re W is confined to unforeseen, extraneous criticisms. Here, adverse findings were squarely within Nigeria’s pleaded case, fully ventilated by cross‐examination, and reasons were adequate to show the judge addressed and resolved the issues. No breach of fair hearing or reputation rights occurred.

Impact

This decision clarifies and reinforces:

• Strict adherence to CPR deadlines and judge-directed procedures for permission to appeal from section 68 decisions.
• The narrow scope of non-party appeal rights: only in truly exceptional cases of unpleaded and unfairly sprung criticisms will Article 8 confer appeal standing.
• The importance of finality in arbitration set-aside litigation: section 68(4) bars collateral non-party appeals against findings integral to the court’s decision.
• The adequacy of conventional procedural safeguards (pleadings, disclosure of draft judgments, cross-examination) in meeting ECHR standards in civil proceedings.

Complex Concepts Simplified

• Section 68(4) Leave Rule: Any challenge to a High Court’s decision under section 68 must first get that court’s permission before proceeding to the Court of Appeal.
• Non-Party Appeal Exception: In rare family-law contexts (In re W), a non-party witness can appeal unpleaded adverse findings that breach fair hearing rights—but only if the criticisms fall outside the case as pleaded.
• Functus Officio: Once a court properly reserves and then hands down a considered order, it does not lose jurisdiction over directions properly reserved—unless explicitly exhausted by procedure.
• Articles 6 & 8 ECHR: Article 6 ensures fair determination of “civil rights”; Article 8 protects private life and reputation. Neither provision creates a general right of appeal for witnesses.
• Legal Professional Privilege: Confidential communications between lawyer and client are protected; knowingly retaining such documents obtained without consent is “indefensible” and “corrupt.”

Conclusion

The Court of Appeal in Andrew v FRN delivers four enduring lessons:

1. Appellants (and non-parties) must comply strictly with CPR time limits and lower-court directions for permission applications.
2. Section 68(4) Arbitration Act sleeves off any appeal from setting-aside judgments unless the first instance judge grants leave.
3. The non‐party appeal exception under Article 8 remains tightly circumscribed: only unpleaded, unforeseen, extraneous judicial criticisms attract it.
4. Standard procedural mechanisms—pleading, evidence, cross-examination, draft judgment review—suffice to meet fair hearing and reputational safeguards in the civil and arbitration context.

In the broader legal landscape, this judgment cements the principle that finality and procedural regularity in arbitration set-aside proceedings outweigh collateral, belated challenges by non-parties. It underscores the imperative for litigants and their advisers to anticipate adverse findings, engage with the draft judgment process, and secure lower-court leave where required.