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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> ASM Shipping Ltd of India v TTMI Ltd of England [2006] EWCA Civ 1341 (16 October 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/1341.html Cite as: [2007] 1 Lloyd's Rep 136, [2006] EWCA Civ 1341 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (Commercial Court)
Hon Mr Justice Morison
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RIX
and
LORD JUSTICE LONGMORE
____________________
ASM SHIPPING LTD OF INDIA |
Applicant |
|
- and - |
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TTMI LTD OF ENGLAND |
Respondent |
____________________
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Zaiwalla & Co) for the Applicant
SIMON CROALL Esq
(instructed by Waterson Hicks) for the Respondent
____________________
Crown Copyright ©
Lord Justice Longmore :
"(4) The leave of the court [viz the judge hearing the application in the High Court] is required for any appeal from a decision of the court under this section."
The question that arises is whether, in the light of that statutory provision, this court has jurisdiction to entertain an application for permission to appeal from the substantive decision of the judge to the effect that there was no serious irregularity on which the shipowners could rely.
"The nature of the allegation; the pattern of them; the involvement of the same solicitors; [Mr Matthews'] involvement in the disclosure process a short time before sitting as arbitrator in judgment on the alleged dishonest party persuades me, for the reasons I have given, that [Mr Matthews] should have recused himself after objection was taken."
"Owners were faced with a straight choice: come to the courts and complain and seek his removal as a decision-maker or let the matter drop. They could not get themselves into a position whereby if the award was in their favour they would drop their objection but make it in the event that the award went against them. A 'head we win and tails you lose' position is not permissible in law."
The judge therefore held that the serious irregularity of apparent bias had been waived and that was the reason why he dismissed the shipowners' section 68 application.
Miss Geraldine Andrews QC who appeared for the shipowners submitted that the judge's holding that the irregularity had been waived was so clearly and obviously wrong that one of two consequences must follow. First there was no decision under section 68 at all either for that reason or because, while waiver might operate as a defence to the claim of a serious irregularity, a decision on waiver was a decision on a defence to the assertion of serious irregularity not a decision on the assertion itself. Secondly she submitted that the judge's decision was an unlawful contravention of Article 6 of the European Convention of Human Rights which guaranteed a fair hearing before an impartial tribunal. If the tribunal was apparently partial as the judge had found, he had no option in law other than to set aside the award and a refusal to do so made the decision unlawful.
The foundation for this submission was the decision in Cetelem SA v Roust Holdings Ltd [2005] EWCA Civ 618; [2005] 1 WLR 3555. In that case the judge had made an order (requiring presentation of documents to a bank for approval) which he had no jurisdiction to make under the relevant section of the 1996 Act (section 44) and had refused permission to appeal. This court held that a decision by the judge to exercise a jurisdiction which he did not have was not a "decision under the section" and permission to appeal could, therefore, be granted.
It is to be noted that the present case is different from the AstraZeneca case. In that case it is alleged that the judge, who allowed the appeal from the arbitration tribunal on a point of law, was himself in breach of the Convention when he came to decide whether there should be permission to appeal. This was because he (allegedly) failed to engage intellectually with the applicants' submissions and/or to decide the question of law in a final way treating it as if it were still an open question which could be determined by the arbitrators when in truth it was not. We have held that the judge did not contravene the Convention and that his refusal of permission to appeal cannot be challenged.
(1) by choosing arbitration, the parties had renounced the requirement of a procedure before the ordinary courts which satisfied all the guarantees of Article 6 of the Convention;
(2) nevertheless account had to be taken of any legislative framework affording a measure of control of the arbitration proceedings and whether that control had been properly exercised;
(3) different states could legitimately afford different grounds for challenging an award and each contracting state could decide for itself what grounds should suffice for quashing an award;
(4) neither Dutch law nor the Dutch courts had acted in breach of the Convention and the application was manifestly ill-founded.
If Dutch law had in addition provided that there was to be no appeal unless the judge gave permission, the Commission would have likewise decided that the application was ill-founded.
In the absence of any realistic argument that the decision of Morison J itself contravened the appellants' Convention rights, therefore, there is, as a matter of English law, no jurisdiction to grant permission to appeal and this application will be dismissed.
Lord Justice Rix:
The Master of the Rolls: