LAW REPORT: Appeal to Court of Appeal Not Removed by Arbitration Act ; 15 March 2000 Inco Europe Ltd and Others V First Choice Distribution (a Firm) and Others House of Lords (Lord Nicholls of Birkenhead, Lord Jauncey of Tullichettle, Lord Steyn, Lord Clyde, Lord Millett) 9 March 2000
Kate O'Hanlon, Barrister, The Independent (London, England)
AN APPEAL lies to the Court of Appeal from a decision, made under section 9 of the Arbitration Act 1996, to stay legal proceedings brought against a party to an arbitration agreement in respect of a matter which under the agreement is to be referred to arbitration.
The House of Lords dismissed the appeal of the claimants against a decision of the Court of Appeal staying proceedings brought by them in the High Court against the defendants.
The claimants, Inco, issued a writ in the High Court claiming damages in respect of the loss of a consignment being carried from Rotterdam to Hereford. One of the defendants, Steinweg, made an application for an order under section 9 of the Arbitration Act 1996 staying the legal proceedings, on the ground that the proceedings had been brought in respect of a matter the parties had agreed by their contract to refer to arbitration in the Netherlands. The application was dismissed, the judge holding that the arbitration agreement was "null and void, or inoperative".
In order to appeal against that interlocutory order, Steinweg needed permission to appeal. The judge refused permission and Steinweg renewed its application to the Court of Appeal. The question arose whether the Court of Appeal had jurisdiction to entertain the appeal, Inco contending that such an appeal was precluded by section 18(1) of the Supreme Court Act 1981 as amended by the Arbitration Act 1996. The material part of section 18(1) provided:
"No appeal shall lie to the Court of Appeal - ... (g) except as provided by Part I of the Arbitration Act 1996, from any decision of the High Court under that Part."
Inco argued that the judge's decision was a decision under Part I of the 1996 Act, and that the saving exception did not apply because nowhere in section 9, nor indeed anywhere else in Part I, was there provision for an appeal from a decision of the court under section 9. The Court of Appeal rejected that submission, holding that the amendment to section 18(1)(g) of the 1981 Act was made by section 107 of the 1996 Act, which was concerned with `consequential' amendments, and that the removal of a pre-existing right of appeal from a decision whether or not to stay litigation covered by an arbitration clause would not be consequent upon anything contained in the 1996 Act. …