Permission to appeal

In National Trust v Fleming [2009] EWHC 1789 (Ch) an application was made to Henderson J for permission to appeal against an arbitration award for error of law under s69 of the Arbitration Act 1996. Permission was refused, but the judgment contains interesting comments on the application of the ’obviously wrong‘ threshold test for the grant of permission to appeal in cases not involving wider public interest issues.

National Trust: the facts

In 1969, exercising its statutory powers under the National Trust Act 1937, the National Trust entered into a Deed of Covenant with Mr Harris, the owner of an estate in Sussex. A clause in the Deed precluded development but stated by way of proviso that: ‘nothing in the foregoing stipulations shall prevent the cultivation of the said land or any part thereof in the ordinary course of agriculture or husbandry in accordance with the custom of the country.’ There was also an arbitration clause.