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K1 v B (No. 2)
Factual and Procedural Background
The Appellant sought permission to appeal against Judge Knowles' refusal to allow an amendment to an in-time challenge under section 67 of the Arbitration Act 1996 ("the 1996 Act") so as to add an out-of-time challenge under s.68(2)(g) to an arbitration award dated 10 April 2024 ("the Award") made in favour of the Respondent. Prior to judgment on the proposed amendment, the Appellant (together with Company A and Company B) had brought a s.67 challenge to the Award. The proposed s.68 challenge alleged the underlying engagement letter was a contract for fraud because services were provided by deception to obtain information from foreign state officials. Judge Knowles refused the amendment on the basis that the proposed ground did not fall within s.68(2)(g) and refused permission to appeal. The Appellant renewed the application to the Court of Appeal. An issue arose as to whether the Court of Appeal had jurisdiction to grant permission to appeal given the limitation in s.68(4) of the 1996 Act that leave to appeal from a decision under that section is to be given by the first instance court. The Court of Appeal (Judge Males directing an oral hearing) considered the renewed application and dismissed it for lack of jurisdiction. The Court also addressed confidentiality, upholding prior anonymisation and privacy orders.
Legal Issues Presented
- Whether s.68(4) of the Arbitration Act 1996 prevents the Court of Appeal from granting permission to appeal against a first instance decision refusing to allow an amendment to add a s.68(2)(g) challenge.
- Whether a consent order (extending the time to apply for permission to appeal) could have the effect of permitting the Appellant to seek permission to appeal from the Court of Appeal despite s.68(4).
- Whether the Judge's decision that s.68(2)(g) was not engaged amounted to a decision as to the court's jurisdiction (and therefore fell outside the limitation in s.68(4)).
Arguments of the Parties
Appellant's Arguments
- The consent order approved by the first instance judge permitted the Appellant to seek permission to appeal from the Court of Appeal.
- The judge's decision that s.68(2)(g) was not engaged was jurisdictional in character (a decision that s.68 was not available) and therefore not caught by s.68(4).
Respondent's Arguments
- The proposed challenge did not fall within s.68(2)(g) on proper construction.
- The challenge was barred by s.73(1) of the 1996 Act.
- The extension of time should be refused because there was no justification for the 11-month delay.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Appellant v Respondent [2025] EWHC 2539 (Comm) | First instance refusal of the proposed s.68 amendment; found s.68(2)(g) not engaged. | Identified as the decision the Appellant sought to appeal; treated as a decision within s.68(4). |
| Case D [2023] EWHC 2638 (Comm) | Authority on interpretation of s.68(2)(g) and related principles (as applied by the first instance judge). | Judge Knowles' prior reasoning in that authority was applied in concluding s.68(2)(g) focuses on parties' conduct in arbitration and the process by which an award was obtained. |
| Company D v Company E [2001] QB 388 | Policy of finality and limitation of appeals under the 1996 Act; one tier of supervisory jurisdiction preferred. | Used to explain the statutory policy behind restricting permission to appeal to the first instance court. |
| Company F v Company G [2005] EWCA Civ 618 | Distinction between decisions within a statutory provision and decisions made without jurisdiction under that provision. | Applied to show that a decision made without jurisdiction is not a decision "under" the relevant section; distinguished from the present case where the judge's ruling was on the merits. |
| Company H v Organization A [2007] EWCA Civ 243 | Distinction between preliminary jurisdictional questions (e.g. exclusion agreements) and decisions under the section where the court has jurisdiction. | Relied upon to explain that certain preliminary decisions about jurisdictional exclusion sit outside the leave limitation, but that the present case fell on the other side of that line. |
| Company I v Company J [2023] EWCA Civ 826 | Scope of limitations on appeals; s.73 ancillary to s.67/s.68; first instance judge as gatekeeper. | Authority for the proposition that preliminary questions ancillary to a challenge are within the compass of sections 67/68 and so within first instance leave restrictions. |
| Company K v Company L [2007] 1 Lloyd's Rep 16 | That s.68(4) can extend to a decision refusing relief for any reason (refusal is still a decision under s.68). | Cited to support that a refusal of relief is nevertheless a decision "under" section 68 and falls within the leave limitation. |
| Company M v Company N [2002] EWCA Civ 405 | Exceptions where limitation does not apply: decisions not being decisions at all, or hearings infringing fair trial. | Noted as examples where a purported decision might fall outside statutory limitation; distinguished from present case. |
| Company O v Company P [2006] EWCA Civ 1340 | As above: circumstances excluding the operation of leave limitations. | Referenced to show limited exceptions to the first instance leave rule. |
| Individual A v Individual B [2019] EWC Civ 4 | Use of consent order wording to preserve time for renewed applications following hand-down. | Explained the usual form and effect of such consent wording; court held it did not confer a right to seek permission in the Court of Appeal contrary to statute. |
| Individual C v Individual C [2024] EWCA Civ 516 | Statutory limitation preventing the Court of Appeal from hearing an appeal even where it purported to grant leave. | Applied to show that a consent order cannot override a statutory limitation on jurisdiction. |
| Entity Q v Company R [2004] EWCA Civ 314 | Principles applicable to applications for confidentiality and anonymisation. | Referred to when considering whether the Court of Appeal should revisit Commercial Court confidentiality orders; court declined to do so. |
Court's Reasoning and Analysis
The court began from the statutory text and policy: s.68(4) (like other provisions in the 1996 Act) limits the power to grant permission to appeal from a decision under that section to the first instance judge, reflecting the Act's policy of finality and single-tier supervisory control. The court considered established authorities distinguishing decisions that are genuinely outside the court's jurisdiction from decisions reached within the statutory jurisdiction but found to be wrong on the merits.
On the consent order point, the court held the order merely extended time for any application the parties were entitled to make; it did not, and could not, confer jurisdiction on the Court of Appeal to grant permission to appeal contrary to s.68(4). The statutory limitation is mandatory and cannot be overridden by agreement or consent order; the court cited authority that even purported leave granted by the Court of Appeal could not cure a lack of statutory jurisdiction.
On the jurisdictional argument, the court rejected the Appellant's submission that Judge Knowles' finding that s.68(2)(g) was not engaged was a decision about the court's jurisdiction. The court drew a clear distinction between preliminary questions that determine whether the statutory mechanism applies at all (e.g. exclusion agreements) and merits determinations about whether a particular sub-paragraph of s.68(2) is engaged on the facts alleged. The latter are part of the merits of a s.68 challenge and fall within the first instance judge's gatekeeping role under s.68(4). Allowing the Appellant's argument would undermine the statutory scheme and the policy of finality; it would also produce anomalous consequences across many of the Act's provisions limiting appeal rights. The court therefore concluded the decision was "under" s.68 and subject to the first-instance-only leave rule.
The court noted the narrow exceptions to the leave limitation (decisions made without jurisdiction, not being decisions at all, or where the hearing infringed fair trial rights) and found none applied on the facts before it.
Holding and Implications
DISMISSED
Holding: The Court of Appeal lacks jurisdiction to grant permission to appeal in respect of the first instance decision refusing the proposed s.68 amendment; the application for permission to appeal to the Court of Appeal is dismissed. The court expressed no view on the arguability of the proposed appeal.
Implications: The direct effect is that the Appellant's renewed application for permission to appeal in the Court of Appeal is unsuccessful for want of jurisdiction. The first instance judge remains the sole gatekeeper for permission to appeal under s.68(4). The court declined to disturb prior Commercial Court confidentiality measures and ordered that the fact of this application not be a basis to revisit those orders; an anonymised publication is appropriate.
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