Key takeaways
Appealing an arbitration award
There are limited rights of appeal because the Arbitration Act 1996 promotes finality in arbitration.
Challenging a first instance decision relating to an arbitral matter
Leave to appeal must be obtained from the first instance court.
Court of Appeal’s jurisdiction
If the first instance court refuses leave to appeal, the Court of Appeal has no jurisdiction to grant permission to appeal.
We previously wrote about this dispute in the context of whether a lawyer’s usual authority on behalf of its client extended to binding that client to a contract with a third-party service provider. In the circumstances of this case, the Court found that the client was not so bound and was not liable to pay the third party’s costs: Solicitors' Authority to Bind Clients | Hill Dickinson
In this latest decision, the Court of Appeal has dealt with a procedural point relating to its jurisdiction to grant leave to appeal the first instance judge’s decision. The decision provides a salutary reminder that where the High Court has ruled on an issue arising out of arbitration proceedings, a party seeking leave to appeal that decision must obtain leave to do so from the High Court. If the High Court refuses leave to appeal, then that is the end of the matter because the Court of Appeal does not have the jurisdiction to grant such leave.
This procedural limitation reflects the policy of the Arbitration Act 1996 (Act 1996) to promote finality in arbitration.
The background facts
In May 2018, B entered into a letter of engagement counter-signed by C, a law firm, to provide 'business intelligence services' to assist in a dispute in which C was acting for K1 (LOE). The LOE contained an LCIA arbitration agreement.
B contended that the services it provided included soliciting information from individuals on the basis of so-called 'pretext' inquiries (which involved giving misleading accounts of the purpose for which information was being sought and the identity of the persons seeking it). Through these inquiries, B claimed to have obtained useful information, which was deployed both for the purpose of K1 commencing an investment treaty arbitration against a state, and in the context of an ongoing commercial arbitration between a company associated with K1, A3, and a state-owned port authority. Both arbitrations were eventually settled on terms which involved payments in favour of K1 or A3.
B commenced an arbitration against K1, A3 and another associated company, A1, alleging that they were all parties to the LOE, and liable to pay B 2% of the amounts received in settlement of the two arbitrations. The arbitration was defended on various grounds, including in the case of A1 and A3 (but not K1), on the basis that the Tribunal lacked jurisdiction. In an award (Award) dated 10 April 2024, the Tribunal found in favour of B on all points.
Challenge to the Award
K1, A1 and A3 sought to challenge the Award pursuant to s.67 of the 1996 Act, which relates to jurisdictional challenges. They subsequently sought to add a further ground of challenge under s.68 of the 1996 Act on the ground of serious irregularity leading to substantial injustice. S.68(2) contains a 'closed list' of 'serious irregularities' including at s.68(2)(g):
'the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy.'
The appellants argued that the LOE was 'a contract for fraud', being a contract for provision of services to 'obtain information from targets by deception' and was performed in that way. The 'targets' were said to be foreign state officials or authorities possessing confidential information about foreign state entities.
However, this purported s.68 challenge was brought out of time. Therefore, K1 sought an order to extend time to bring the challenge, pursuant to s.70(3) of the 1996 Act. B opposed the s.68 application.
In June 2025, the first instance judge (Mr Justice Robin Knowles) dismissed the s.68 application. He relied on the decision in Federal Republic of Nigeria -v- Process & Industrial Developments Limited [2023] EWHC 2638 (Comm), in which the Court held that s.68(2)(g) was not engaged by the assertion that the arbitral proceedings involved a claim to enforce an illegal or unenforceable contract. Rather, the focus of s.68(2)(g) was on the parties' conduct in the arbitration and the process by which the award was obtained. Therefore, Knowles J refused the application because he decided that it was not arguable as a matter of law. The judge did not address the s.73(1) or delay issues.
On 13 November 2025, the judge approved a consequentials order made by consent, which provided that:
'The 21-day period in which a party may seek permission to appeal from the Court of Appeal for purposes of CPR 52.12(2)(b) shall start to run from the day after the Judge's written decision on any application for permission to appeal made in the Consequentials Submissions.'
On 1 December 2025, the judge refused K1, A1 and A3 permission to appeal.
On 19 December 2025, a different judge, Mr Justice Henshaw, upheld the s.67 challenge in the case of two of the arbitral respondents but dismissed it in the case of K1.
Leave to appeal
K1 sought leave to appeal against the decision of Knowles J refusing its application to amend its challenge to the Award to add the s.68 challenge. An issue arose as to whether the Court of Appeal had jurisdiction to grant permission to appeal, having regard to s.68(4) of the 1996 Act which provides:
'The leave of the court is required for any appeal from a decision of the court under this section'.
It was not disputed that, where it applied, s.68(4) of the 1996 Act limited the power to give permission to appeal from a decision under that section to the first instance judge. That was a consequence of s.105 of the 1996 Act which defines the court as 'the High Court or the County Court'.
However, K1 argued that s.68(4) did not prevent it from seeking permission to appeal from the Court of Appeal in this case because:
By the terms of the consent order of 13 November 2025, the judge had given K1 the right to seek permission to appeal from the Court of Appeal directly.
The decision appealed against was said not to be 'a decision of the court under [s.68]' because it was a jurisdictional decision (i.e. that s.68 was not available to K1) and not a decision on the merits of the s.68 application.
The Court of Appeal decision
K1’s application for permission to appeal was dismissed.
The Court of Appeal found that the consent order wording did not have the effect of conferring a right to apply to the Court of Appeal for permission to appeal if permission was refused by the judge. Specifically,
The wording did not address whether or not a party had a right to seek permission to appeal but simply extended the time only for making such application which it was already entitled to make. There were exceptional circumstances in which the Court of Appeal could grant permission to appeal against the determination of a s.68 application, and this provision would have preserved time for such an application.
The judge was not asked to make an order varying s.68(4) and would have refused to do so if asked. At that stage, he had not yet been asked whether he would grant leave to appeal.
In any event, the limitation on the Court of Appeal's power arose as a matter of statute. A consent order could not override that statutory limitation, nor could the order of the first instance judge confer a jurisdiction on the Court of Appeal which the 1996 Act made clear it did not have.
S.68 (and therefore the limitation in s.68(4)) was a mandatory provision of the 1996 Act which had effect notwithstanding any agreement to the contrary. The parties could not confer jurisdiction on the Court of Appeal to grant permission to appeal by agreement or estoppel.
The Court of Appeal also distinguished between the question of whether the Court's statutory powers under the 1996 Act were engaged at all, and the separate question of whether the pre-conditions for granting relief were met in a particular case.
The Court of Appeal further found that the judge’s ruling was a decision under s.68 and therefore subject to s.68(4). This was because:
The question before the judge was whether K1 had made out a valid s.68 ground.
When the judge decided that s.68(2)(g) did not apply, he was deciding the challenge itself, not deciding whether the Court had jurisdiction to examine it.
Consequently, the judge was acting within s.68, exercising the supervisory role that the High Court has over arbitral awards.
Consequently, the Court of Appeal did not have jurisdiction to grant permission to appeal in this case.
Comment
The Court of Appeal referred to the very limited exception in which it could grant permission to appeal a High Court decision made under s.68: (i) a court decision made without jurisdiction; (ii) where the purported decision was not a decision at all (for example, if it was incomplete, incoherent, or procedurally defective to the point that it could not properly be characterised as a decision under s.68); or (iii) the hearing infringed the appellant’s right to a fair trial.
Otherwise, the lower court’s decision to refuse leave to appeal stands: the High Court’s refusal of permission to appeal under s.68(4) is final, and the Court of Appeal cannot revisit or override it.
