Arbitration: another appeal bites the dust

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On 11 November 2020, for the second time in just over a month, the High Court considered an appeal by an agricultural tenant, against the award of an arbitrator, in which the arbitrator had upheld the validity of three Case B Notices to Quit served under the Agricultural Holdings Act 1986.

This is the latest decision in the ongoing litigation between Jenkin Rees and the Earl of Plymouth (Rees v Earl of Plymouth [2020] EWHC 2986 (Ch) – see previous article.

Mr Rees sought to set aside the award relying on five grounds pursuant to sections 68 and 69 of the Arbitration Act 1996 (“AA 1996”), on the basis that there had been a serious irregularity in the arbitration process and there were questions of law, in the application of which the arbitrator had made an error.

Questions of law

There were two grounds of appeal:-

1. The arbitrator was wrong to determine that the landlord “required” the land back at the expiry of the notice to quit, or a relatively short time thereafter; that Case B could be satisfied even if “the relevant work is to be carried out at some distant date in the future”;  that he did not determine which parts of the land, subject to the notices, would be required; that Case B was satisfied even if some of the land was not developed for a number of years; and, whilst finding that land was needed for earth moving, storage and infrastructure works, he did not make a finding as to when that land would be required for that purpose.

Decision – no error had been made by the arbitrator.

2. The arbitrator was wrong to determine that a notice to quit a strip of land required for a cycleway was valid because it did not involve building work or possession. The tenancy contained a part resumption clause, permitting the landlord to give short notice if part of the holding was required for “building development.

Decision – no error had been made by the arbitrator. The arbitrator, who received legal advice, found the development of the cycleway involved ‘building’ as it was part of the highway and part of the road building.

Procedural points

There were three procedural grounds. The one that requires comment relates to an arbitrator’s ability to correct their award. Under section 57(3)(a) AA 1996, arbitrators can:-

“correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award…”.

The arbitrator corrected his original award, which determined that the notice to quit in respect of the larger tenancy, was invalid because it was given in respect of part only. The landlord’s solicitors made the request, asserting that he had been mistaken. The arbitrator accepted he had “overlooked and did not consider the wording” of the notice.

Mr Rees contended that section 53 could only be used to correct an error affecting the tribunal’s thought, rather than the tribunal’s thought process.

Decision – the Arbitrator was merely correcting an accidental slip.

The other procedural grounds also failed.

Conclusion

What this decision highlights is that it still remains the case, that parties seeking to appeal an arbitrator’s award face an uphill battle. Section 57 is not a get out of jail free card to get an arbitrator to rewrite their award. It can only be utilised to correct a clear error.