Permission to appeal heard by HHJ Robertson involving a challenge to an arbitral determination in a children matter. Held that the powers of an arbitrator to re-open issues in a case are different to those of a judge, as they operate in different spheres, under different rules and to achieve different outcomes.

Background

The parties attended arbitration for a children matter and received the arbitrator’s written determination on 31 May 2024 resolving all issues. However, the parties were unable to agree the terms of the draft order in relation to certain matters including the summer holidays. The mother referred the issue of the summer holidays (among others) back to the arbitrator who refused to look again at the issue of summer holidays as she had already determined it and had not read anything which would cause her to change her decision.

The mother subsequently filed a C2 seeking to challenge the arbitral determinations of the arbitrator in relation to one issue only, namely the division of time in the summer holidays after 2025. The application was dealt with on paper by HHJ Robertson.

The law

After considering Haley v Haley [2020] EWCA Civ 1369 which established the law in relation to appealing a financial remedies arbitration award, and G v G [2022] EWFC 151 which held that when appealing an arbitration award the same legal test should apply in financial remedies and children matters, HHJ Roberston held that the mother’s application should be considered in two stages.

1. First, the court should decide whether the application has a real prospect of success or whether there is any other compelling reason why the appeal should be heard.
2. Then, if the above test is met, set the matter down for a review hearing at which the question will be whether the arbitrator was wrong.

A real prospect of success?

Ground 1

Ground 1 challenged the decision on the basis that when reconsidering the issues of summer holidays, the arbitrator erred procedurally by deeming the issues of summer holidays to be res judicata.

Counsel for mother asserted that a judge has the power to re-open their judgment or order at any time until the order is sealed, and the question is whether the factors in favour of re-opening the judgment are sufficient to outweigh the finality principle, together with any other factors supporting the original order as decided by the Supreme Court in AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16.

HHJ Robertson held that the case law that applies to a judge when revisiting a judgment does not necessarily apply to an arbitrator, as they are not the same and operate in different spheres according to different rules. There is no duty on an arbitrator to explain their power to review a decision.

Section 30(1)(c) of the Arbitration Act 1996 allows the arbitral tribunal to rule on what matters have been submitted to arbitration in accordance with the arbitration agreement. As a result, an arbitrator can only re-open the issues if the parties were agreed that was to be the case, or in the absence of agreement, under s 57(3)(a) or s 57(3)(b) of the Arbitration Act 1996, neither of which applied in this instance.

HHJ Robertson held the arbitrator was correct to decline to reassess the issue, and Ground 1 had no real prospect of success.

Ground 2 and 3

Ground 2 challenged the decision on the basis that the arbitrator was wrong in her approach to the determine on summer holiday because: she did not include a welfare checklist; she did not balance the parents’ position as expressed at the hearing; and no reason is given why the mother is treated differently. Ground 2 was dismissed by the court as having no real prospects of success.

Various matters were raised under Ground 3 which were all found to have no real prospect of success primarily because they were simply repetitious of Ground 1 or 2.

Another compelling reason?

HHJ Roberston held the case would not provide an opportunity to clarify the definition of ‘a real prospect of success’ as there were no real prospects of success regardless of whether the ‘more than 50%’ test proposed by Mostyn J in NLW v ARC [2012] 2 FLR 129, FD, or the ‘real prospect of success’ test proposed by Moor J, is used. There were also no other public or wider interests that made a compelling reason for the appeal to be heard.