Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [2000]
- Reported: All England Official Transcript, 28 July 2000
- Year: 2000
- Court: Court of Appeal
FACTS:-
Henry Boot Construction (UK) Ltd (Henry Boot) was the main contractors under a building contract on JCT Standard Form of Building Contract, 1980 Edition (with Quantities). Malmaison Hotel (Manchester) Limited (Malmaison) was the employers. A dispute arose in relation to the proper construction of Clause 25 of the contract, and as to whether the Architect should have granted a further extension of time.
The matter was referred to arbitration, and Mr Bruce Mauleverer QC made an interim award. With the consent of Malmaison (by virtue of Clause 41.6.1 of the contract), Henry Boot challenged the interim decision under Section 69(1) of the Arbitration Act 1996 in the Mercantile Court in Manchester. The matter was transferred to the Technology and Construction Court at the Royal Courts of Justice, and heard by Dyson J. He upheld the view of the arbitrator.
Henry Boot sought from the judge leave to appeal to this court under s.69(8) of the 1996 Act. That was refused by Dyson J. They then sought leave from Dyson J to appeal his refusal of leave. He was of the view that he had no jurisdiction to grant such leave but made clear that even if he had he would have refused leave.
Mr Black QC on behalf of Henry Boot sought to persuade the Court that the Court of Appeal has jurisdiction to grant leave to appeal under s.69(8) of the 1996 Act, or at the least that it has the power to review the refusal of leave therefore meaning the court has the power either to treat Dyson J’s refusal as a decision of the High Court in relation to which this court could itself grant leave to appeal; or review it in the sense of holding that the judge did not exercise his discretion properly, and substituting the exercise of this court’s discretion for that of the judge.
At the conclusion of Mr Black’s submissions, we ruled that on the proper construction of s.69(8), since Dyson J had refused leave to appeal, this court had no jurisdiction either itself to grant leave or to review that refusal to grant leave.
The case went to the Court of Appeal.
HELD:-
Waller LJ, found that on the proper construction s.69(8) as Dyson J had refused leave to appeal, this court had no jurisdiction either itself to grant leave or to review that refusal to grant leave. Waller LJ further stated that it would be difficult to find words clearer than s.69(8) for the proposition that leave of the High Court was needed before any appeal could be brought in the Court of Appeal. Waller LJ, concluded that the Court of Appeal had no jurisdiction to entertain the appeal of Henry Boot from the decision of Dyson, J.
Arden, J and Swinton Thomas LJ agreed with Waller LJ.
Arden, J found that the Access to Justice Act 1999, s.55 had not repealed the Arbitration Act 1996, s.69(8). Arden, J found that this was an important point and the interrelationship between the two sections had to be considered. Arden, J concluded that even if a High Court judge grants permission under the Arbitration Act 1996, s.69(8) the appellant must also obtain permission from the Court of Appeal under s.55 of the 199 Act.
Swinton Thomas, LJ agreed with the addendum judgment given by Waller LJ and took the view that s.55 of the Access to Justice Act 1999 had no effect so far as s.69(8) of the Arbitration Act 1996 was concerned. Swinton Thomas LJ found that it was very unlikely that Parliament or the draftsmen could have intended that leave to appeal should be obtained twice over, Swinton held that the legislation did not require this either and concluded his judgement by agreeing with Waller LJ and Arden J that s.55 has not repealed s.69(8).
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