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HMV UK v. Propinvest Limited Partnership [2011]
EWCA Civ 1708
The court usually may only give leave for an appeal against an
award of a rent review arbitrator if, on a question of law, the
decision is "obviously wrong" (Arbitration Act
1996,s.69(3)(c)(i)). Such an error of law should, by its nature, be
readily identifiable on a reading of the papers, but the history
revealed in HMV UK v. Propinvest Limited Partnership
[2011] EWCA Civ 1708 suggests that experienced
Chancery judges do not always find it easy to recognise what is, or
is not, obvious in the rent review context.
In this case, there was an application for leave to appeal
against an award made in July2010. In December 2010, one chancery
judge on consideration of the papers, directed an oral hearing of
the application (to be heard together with the appeal, if leave was
granted). In April 2011, another chancery judge refused the
application for leave, after an oral hearing, but granted
permission to appeal to the Court of Appeal. In November 2011,the
Court of Appeal dismissed that appeal.
As Longmore LJ said (para. 44): "this case is not
therefore a particularly good advertisement for the arbitration
process". There was no "comparatively speedy
process giving rise to finality". The rent review was
delayed for well over a year by use of court procedures, and this
is not in accordance with the policy of the Act. The judges of the
chancery division are well able to act robustly where required and
I suggest that it should only be in exceptional cases that the
identification of an obvious error should require oral
argument.
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