BROMLEY PARK GARDEN ESTATES LTD V MALLEN

[2009] EWHC 609 (Ch), Chancery Division, Kevin Prosser QC, Deputy High Court Judge, 25 March 2009

Arbitration – Serious irregularity – Arbitrator refusing to order disclosure of documents –Whether arbitrator acted unfairly – Arbitration Act 1996, sections 33 and 68(1)(a)

The parties to a rent review arbitration were each represented by surveyors. The tenant’s surveyor referred in his submissions to two arbitrations and an expert determination to which he had been party and which had involved rent discounts, not by way of comparator but by way of illustration. The arbitrator refused to order disclosure of the relevant documents relating to those decisions. The arbitrator then ordered the landlord’s representative to submit counter-submissions, failing which he would proceed to an award. No submissions were received and an award was made in the tenant’s favour despite an application for an oral hearing. The landlord’s application to set aside the award for serious irregularity under section 68(2)(a) of the Arbitration Act 1996 was dismissed: the arbitrator had been entitled to form a view as to whether the arbitration awards and expert determination were relevant, and he had concluded that they were at best of marginal relevance, so there was no unfairness in a refusal to order disclosure of irrelevant documents. Further, requiring counter-submissions and then proceeding to an award in their absence was not unfair given that the arbitrator had every reason to believe that the counter-submissions had been prepared, and refusing an oral hearing was not unfair because it would simply have led to fresh arguments on the disclosure ruling.