Permission to appeal

CGU International Insurance plc and others v AstraZeneca Insurance Co Ltd CA TLR 3 November

Section 69(8) of the Arbitration Act 1996 limits the right of appeal to cases where the first instance judge has given leave to appeal. Nevertheless there is a residual discretion to permit an appeal despite the judge’s refusal of leave, where that refusal could be challenged on the ground of unfairness under article 6 of the European Convention on Human Rights. What one was looking for was not merely an error of law, but such a substantial defect in the fairness of the process as to invalidate the decision. For those purposes, it was clear that perversity in itself, a decision that no reasonable decision-maker could make, was not enough. In the present context, an arbitrary decision goes beyond perversity, as that expression is generally used in the courts: the court is looking to something which amounts to unfairness in the process, such as deciding on the basis of a litigant’s skin colour. It is important to underline the dangers of the residual jurisdiction being misused. There might be a temptation, even an unconscious one, to present an unfavourable decision as one, which was not only wrong, but arrived at unfairly. But it was likely to be an exceptionally rare case where the submission of unfairness was justifiably advanced. The courts would not permit the residual jurisdiction, which existed to ensure that injustice was avoided, to become itself an unfair instrument for subverting statute and undermining the process of arbitration.