CNH Global NV v PGN Logistics Ltd & Ors [2009] EWHC 977 (Comm)

EWHC-Comm
CNH Global NV v PGN Logistics Ltd & Ors
[2009] EWHC 977 (Comm)
[1]This has been the hearing of an application and a cross-application under s.68 of the Arbitration Act 1996 ("the 1996 Act"). It arises out of a substantial dispute between the parties, which was the subject of ICC arbitration relating to a Services Agreement between the Claimant, CNH Global NV (as it now is) and the Defendant PGN Logistics Ltd. ("PGN"), and other parties who are not relevant to these applications.[2]The Services Agreement was terminated by the Claimant in circumstances which the Defendant alleged to be wrongful on 12th January, 2005. ICC arbitration was commenced by the Defendant on 9th February, 2005. There was a partial award on issues of liability on 31st July, 2007 by virtue of which the arbitrators who were Ms. Yves Fortier, CC. QC as Chairman, Mr. Anthony Boswood, QC, and Judge Paul Hammond. The award was delivered on 31st July, 2007. By that partial award the arbitrators concluded that the Claimant was in repudiatory breach of the Services Agreement by virtue of its termination. The result would be that there would be a substantial damages claim by the Defendant against the Claimant. That would form the subject matter of a further hearing by the arbitrators on quantum. That took place on 8th and 9th October, 2007.[3]The issue which has resulted in this application before me related to only one of the heads of claim by the Defendant against the Claimant said to result from the repudiatory breach by the Claimant - namely, loss of what were called future profits. As a result of the termination, the Services Agreement did not continue in force after January 2005; had it continued in force, transportation obligations, taken on by the Defendant for the Claimant, in relation to certain items of equipment would have continued until December 2005, and in respect of other items of equipment would have continued for f3 years until December 2007. The Services Agreement involved effectively the total involvement of the Defendant's manpower with the Claimant. They were in substance the Defendant's only customer, and there was a substantial turnover between the two companies under the Services Agreement - hence the loss of profits that were claimed were also very substantial.[4]There were experts instructed on both sides. The way that the experts, in the early stages, argued the point was by reference to a calculation of the loss of profit as at the date of termination. Both experts accepted in that case that there would be required to be a discount from the total amount of the lost profit as formulated. In the case of the Defendant's expert, the expert accepted that that would be the case by virtue of early payment of the loss of profits over the notional three year period, if they were to be assessed as at January 2005. Both experts opined that, in addition, there would need to be taken into account, in respect of the calculation of the loss of profits, estimated variables. So far as the Defendant was concerned, the Defendant would have argued that had the Defendant remained in control under the Services Agreement, more profit might have been made; the business might have been more successful or more satisfactorily conducted than it was once they were dismissed. So far as the Claimant was concerned, they submitted that there were uncertainties, as at January 2005, by way of whether the business would continue, whether the Defendant was in a position to continue the business and whether it would have continued profitable. Hence, whereas both parties looked at the documents that were disclosed in relation to how business went on after the termination of the contract in the hands, no doubt, of a successor or successors, neither side rested their calculations exactly on the precise events that occurred afterwards, for the reasons that I have just given.[5]It appears to have been in the course of the hearing that Mr. Boswood, Q.C. came up with the suggestion that there would not be any necessity for any discount, given that by the time of that hearing, in October 2007, almost the entirety of the run-off period (if I can call it that), under what would otherwise have been the agreement, would have expired. Hence, he suggested, would it not be more sensible to follow the principle adumbrated by the House of Lords in Golden Strait Corporation -v- Nippon Yusen Kubishiki Kaisha [2007] 2AC 353 by reference to the old and well-established House of Lords authority of Bwllfa and Merthyr Dare Steam Collieries 1891 Ltd v Pontypridd Waterworks Company (1903) AC 426? Although there does not appear to have been full consideration in the course of discussion in front of the Tribunal of either of those cases - and, in particular, Golden Strait would then have been a very recent decision - there appears to have been full understanding of the well-known words of Lord McNaghten in Bwllfa at 431 (cited in Golden Strait at p.392G), namely:
"Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him, why should he shut his eyes and grope in the dark?"
In the event the award was not delivered until 4th February, 2008, by which time the run-off period had totally terminated.[6]Shortly after this intervention by Mr. Boswood, Q.C., there was cross-examination of the Claimant's expert, Mr. Caldwell, who continued to assert that there ought to be at any rate some discount, although he appears, in the course of cross-examination by Mr. Peter Ralls, Q.C. for the Defendant, to have slowly moved away from that position, until he seems to have concluded simply by saying, "There has to be some discount to reflect the fact that there is no certainty of those figures".[7]There is no doubt that both parties appreciated that if the damages were assessed as at January 2005 there would need to be a discount. Of course, if they were assessed as at January 2005 interest on any award would run as from January 2005. It is difficult to see on what basis, if the damages were not assessed at January 2005, but at the date when the monies would otherwise have been received during the course of the three year contract, there would be room for any such discount as Mr. Caldwell remained contending for, albeit in a rather half-hearted way, by the end of his cross- examination.[8]In any event, the arbitrators did not accept that there should be any discount, and fully adopted the Bwllfa argument. In the Final Award (Quantum) the Arbitrators recorded their decision in this regard. "205. After deliberation the Tribunal agrees with the Respondents that no discounting is appropriate in the circumstances. The Tribunal in this regard relies on the reasoning of the House of Lords in the case of Golden Strait Corporation -v- Nippon Yusen Kubishika Kaisha [2007] 2 WLR 691, where it was found that in certain circumstances, such as these, it may be appropriate to quantify damages as at the date of actual assessment" [and I shall return to those words] "as opposed to the date of breach of contract. In so doing, the majority (per Lord Carswell) cited an earlier case which aptly highlights the relevance of hindsight when one is required to rule on the quantification of damages. The Tribunal adopts the wording of Lord McNaghten in that decision ...[206]Thus given that the Services Agreement would have expired a mere few days from the date of the present award, the Tribunal's assessment of lost profits resulting from the termination thereof need not be discounted and the Tribunal so find". In the following paragraphs, the Tribunal made no uplift either, as had been sought by the Defendant. Consequently they based themselves wholly on the actual figures by way of turnover in respect of transportation after January 2005 under the new arrangements which no longer included the Defendant.[9]The Tribunal dealt with interest in paragraphs 233 ff of its Award. It recited the Claimant's position on the issue of interest from its written submissions, including a paragraph 103 which said, "In this context it should be noted that there is a fundamental link between(i) the use of a discount rate when calculating [the Defendant's] future losses and(ii) the award of interest on future losses. The only reason that an award of interest on lost future profits is appropriate is because a discount rate has been applied when calculating future losses. If the parties had not applied a discount rate when calculating [the Defendant's] future losses, interest on those future losses would not accrue from 12th January, 2005 or at all". Mr. Temmink, who has appeared today for the Defendant, has pointed out that that actually is not a correct statement, because the choice of 12th January "or at all" is not an exclusive choice.[10]The Tribunal further recites the next paragraph, 104, in the Claimant's closing submissions, indicating that they had already effectively made an interim payment in respect of future loss, which had included interest on that future loss. Although it is not spelt out in that paragraph, it is in fact the case that they had made that payment after applying the discount for which they were then contending. Having recited that argument from the closing submissions of the Claimant which had been made, of course, before they knew that the arbitrators were in the event going to decide that there should be no discount, the arbitrators continued very shortly, and without reasoning, to set out their conclusion in paragraph 238 as to interest on damages for lost profits. They concluded that it should be, "-- payable at the equivalent rates from 14 days after the date of the present Award, compounded quarterly until the date of payment".[11]The result was that the Tribunal concluded that damages should be assessed on the basis that there should be no discount, and that the Defendant should receive them in accordance with how they would have been paid out and, consequently, they would have received such profits had the contract continued, i.e. during the years 2005, 2006, and 2007, but without receiving any interest on that sum at all.[12]There were several criticisms, or complaints, that both sides had of the award, none of which are relevant to this application. But the major one, and that which has formed the basis of this hearing, is the deprivation, as the Defendants see it, of any interest on a very substantial sum by way of damages which had been awarded to them. It is common ground between the parties that the interest that would thus fall not to be paid by the Claimant to the Defendant if that decision stands is somewhere between £1.5 million and £3 million.[13]An application was made to the Arbitrators consequently to correct the award - inter alia to correct the fact that interest was awarded only as from the date of the award, and thus not on the damages from the dates when the sums would otherwise have fallen due. The relevant Article for the purposes of making such an application, under the ICC Rules of Arbitration in force as from 1st January 1998 is Article 29, headed 'Correction and Interpretation of the Award'. "(1) On its own initiative the Arbitral Tribunal may correct a clerical, computational or typographical error, or any errors of similar nature contained in an Award provided such correction is submitted for approval to the court within thirty days of the date of such Award ----" Then at (2) there can be an application by a party for the correction of an error of that kind, with time limits for doing so.[14]Written submissions were put in by both parties in support of the various positions and in opposition to the other party's position. The arbitrators issued a document pursuant to those submissions, and after considering them. The document is called "Addendum". It was issued on 10th June, 2008. The part of the Addendum which is relevant to what I have been considering is paragraph 13. There is a cross-reference to paragraph 13 in paragraph 10. It is common ground that, if paragraph 13 fell away, that cross-reference would become pointless. But, the challenge which I shall describe is not directed specifically to paragraph 10. It is to paragraph 13, which is the paragraph which has been in issue before me. It reads as follows:
"The Tribunal accedes to the application by the First to Third Respondents that the second sentence of para. 238 and the third sentence of para. 249(9) of the Award should be amended in the terms sought. In the Tribunal's opinion, those sentences contain a "clerical, computational or typographical error, or an error of a similar nature"
. The Tribunal did not intend that the First Respondent should be deprived of interest on its claims for loss of profits which it would have earned during periods of time which had expired prior to the making of the Award. Liability for such interest had already been conceded by the Claimant and substantial amounts paid by the Claimant in respect thereof. In the last sentence of para. 238, the Tribunal recognised such fact and provided that the Claimant should get credit for the amounts so paid. The said sentences are therefore amended to read as follows: 'Interest on damages for lost profits is payable at the equivalent rate from 1st July in each year in which such profits would have been earned, compounded quarter until the date of payment'".[15]It may be that this error arose by virtue of the passage that I have quoted earlier from their Award at paragraph 205, when, in relation to their acceptance of the Bwllfa principle, they referred to intending not to give damages at the date of breach, but at the date when they were assessed. That may have carried them forward erroneously to their award of damages only as from the date of award. But, one thing that is clear, however it may have occurred, is that this error by the Arbitrators which they, by this Addendum, admit, would not in my judgment have occurred if only they had followed what seems to me to be the sensible course of allowing some short opportunity for oral submissions after the service of written submissions. Very sensibly in this case the Arbitrators directed written submissions. In this case they were by exchange. This was, of course, in the context that it was only at the hearing itself that the situation had changed from one in which both sides were arguing for a discount to one in which it was now entirely possible that there would be no discount. Had this been explored in a half a day, or less, set aside for oral submissions by the parties, once both written submissions had been served, I suspect that any misunderstanding on all sides would have been speedily cleared up. However, it was not. This error occurred. I shall call it, for the purposes of this judgment, as I did in the course of the hearing, a 'howler' by the Arbitrators.[16]The application by the Claimant in this case has therefore been to challenge that Addendum on the basis that the Arbitrators had no power to correct the arbitration award under Article 29. Two points can be cleared out of the way immediately. They are these: there was a suggestion at one stage that it would be contended that the Arbitrators were acting under s.57 of the Act in which there is a similar, but rather wider, correction provision. That is not pursued, and the only question before me is as to whether, given that this was an exercise of the arbitrators' powers under Article 29, it can be successfully challenged.[17]The second point is that the challenge by Mr. Paul Key on behalf of the Claimant was put not only by reference to s.68 (to which I shall turn), but also by reference to s.67 of the Act. Mr. Temmink, in his skeleton, put forward forceful submissions that s.67 could not be relied upon in this case for such purpose. I accept that. S.67 reads as follows:
"(1) A party to arbitral proceedings may ... apply to the court (a) challenging any award of the arbitral tribunal as to its substantive jurisdiction ..."
. The challenge by Mr. Key in this case, alleging that the arbitrators were acting without their powers under Article 29, was not, Mr. Temmink submitted, a challenge within s.67. Substantive jurisdiction is defined in s.82 of the Act as follows:
"Substantive jurisdiction, in relation to an arbitral tribunal, refers to the matters specified in s.30(1) (a) to (c), and references to the tribunal exceeding its substantive jurisdiction shall be construed accordingly"
. Section 30 of the Act deals with the competence of a tribunal to rule on its own jurisdiction and it provides, "(1) Unless otherwise agreed by the parties the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to (a) whether there is a valid arbitration agreement; (b) whether the tribunal is properly constituted; and (c) what matters have been submitted to arbitration in accordance with the Arbitration Agreement". There is provision for an objection that the arbitral tribunal lacks substantive jurisdiction in s.31 of the Act.[18]S.68 (to which I will refer in a moment), which allows challenge by reference to serious irregularity, specifically provides in s.68(2)(b) that one of the grounds of challenge on the basis of serious irregularity is based upon the Tribunal exceeding its powers "(otherwise than by exceeding its substantive jurisdiction; see section 67)". I have no doubt whatever that s.67 relates to situations in which it is alleged that the arbitral tribunal lacks substantive jurisdiction, i.e. that there was in fact no arbitration clause at all, and no jurisdiction for the arbitrators to act at all at any rate in relation to the relevant dispute, and not to situations in which arbitrators properly appointed were alleged to have exceeded their powers.[19]This is a conclusion which was reached by Morrison J (albeit at somewhat less length then I have just recited) in Lesotho Highlands Development Authority and Impregilo SpA & Ors. [2003] 1 All ER(Comm), 22 at 25. I agree with him.[20]The other matter which I should clear out of the way at this stage is that, whereas the challenge under s.68 was put in his skeleton by Mr. Key by reference to sub- paragraphs (c) and (e) of s.68(2), I am entirely clear that the only sub-clause which is of relevance is s.68(2)(b), which has formed the basis of the argument before us, relating to exceeding of powers by a tribunal. S.68(2)(c) - "failure by the tribunal to conduct a proceedings in accordance with the procedure agreed by the parties" - is not, in my judgment relevant here; nor is s.68(2)(e) where it is "an arbitral or other institution or person vested by the parties with powers in relation to the proceedings other than the tribunal itself conducting the arbitration" (which is plainly dealt with in s.68(2)(b)). I shall only, therefore, read those passages of s.68 which remain relevant to the disputes which I have resolved. "(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings, or the award ... 2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant ... (b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction; see s.67) ... (i) any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award; (3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award may: (a) remit the award to the tribunal in whole or in part for reconsideration; (b) set the award aside in whole or in part; or (c) declare the award to be of no effect in whole or in part. The court shall not exercise its power to set aside or to declare an award to be of no effect in whole or in part unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration".[21]Two matters should be made clear - and Mr. Key, of course, heavily relied upon both - before I develop the matter further. The first is that arbitrations are intended to be considerably more final in their conclusions even than those of the courts. Where parties have agreed for disputes to be resolved by arbitrators, the court should be slow to intervene. In particular, of course, in relation to ICC arbitrations even the ordinary right of appeal to the court under s.69 of the Act has been excluded. Reference was made by Mr. Key to the words of Mustill and Boyd in the 2001 Companion Volume to the second edition of their book, Commercial Arbitration at p.341 when, by reference to the power to correct under s.57, the editors say, "Neither of these powers is intended to enable the arbitrator to change his mind on any matter which has been decided by the award, and attempts to use this section for this purpose should be firmly resisted".[22]Secondly, Mr. Key rightly points out that the old power that there was, for the court under s.22 of the Arbitration Act 1950 to remit an award in its discretion to the arbitrators, which was, Mr. Key reminds me, heavily criticised for many years as giving the court too great a power to intervene in what was intended to be independent decision by arbitrators, has been abolished and there is no replacement for it in the new Act.[23]The decision in the Addendum by the Arbitrators I have read. They firmly state that, "The Tribunal did not intend that the First Respondent should be deprived of interest on its claims for loss of profits which it would have earned during periods of time which had expired prior to the making of the award". That was the effect of the Award. They say they had not intended it. They asserted that the sentences which, incorrectly in those circumstances, limited interest to post- award interest, and thus deprived the Defendant of any interest on its losses, was said by the Arbitrators to be correctable, because the relevant sentences contained a "clerical, computational, or typographical error or an error of a similar nature".[24]I am asked by Mr. Key to review that sentence, and to conclude that it is incorrect, and, if it is incorrect, then they are not acting within their powers under Article 29, which I have recited. Mr. Key submits that what occurred was not a clerical error. Mr. Temmink referred to the judgment of Mr. Evans-Lombe, Q.C. (as he then was) in Wordingham -v- Royal Exchange Trust Co. Ltd. & Anr. [1992] Ch. 412 at 419 ff. In that judgment Mr. Evans-Lombe Q.C. referred to a dissenting judgment in an Australian case in which Williams ACJ said, "A clerical error, I would think, occurs where a person either of his own volition or under the instructions of another intends to write something and by inadvertence either omits to write it or writes something different". Mr. Evans-Lombe, Q.C. concludes that, "The words 'clerical error' [at any rate as used in the Act which he was there dealing with], are to be construed as meaning an error made in the process of recording the intended words of the testator in the drafting or transcription of his will. That meaning is to be contrasted with an error made in carrying his intentions into effect by the drafter's choice of words and with a mistaken choice of words because of a failure to understand the testator's intentions". Mr. Temmink submits that in the light of what the arbitrators have said, that is what occurred here.[25]Mr. Key, however, refers to two significant authorities. The first is Mutual Shipping Corporation v Bayshore Shipping Co. Ltd. ("The Montan") [1985] 1WLR, 625, CA, and [1984] 1 Lloyds Rep 389 (Hobhouse J). In that case there was discussion of error - an accidental slip and the slip rule - by reference to what was then s.22 of the Arbitration Act 1950, but also with an addressing of an alternative jurisdiction, with which I do not need to deal, under s.17 of that Act. The Court of Appeal in that case, to whose judgment I will return, concluded that there was in fact jurisdiction under one or other of those two sections to remit the award to the arbitrator for reconsideration, and upheld an order to that effect. It is plain, however, that they concluded that the error which had taken place in that case was not a clerical mistake.[26]The other authority to which Mr. Key referred was Food Corporation of India and Marasro Cia Naviera Shareholders' Agreement (The "Trade Fortitude") [1986] 2 Lloyd's Rep 209 at 216 in which Lloyd LJ felicitously expressed what is required, when adopting the words of Rowlatt J in Sutherland and Co. -v- Hannevig Bros. Ltd. [1921] 1 KB, 336 at 341. The error must "be an error affecting the expression the arbitrator's thought, not an error in the thought process itself".[27]I am satisfied that it is not possible to say that this was a clerical error, even on the basis of the explanation by the Arbitrators themselves. I take into account that this Addendum has been put before, and approved by, the ICC, but that, as Sutherland and Co. -v- Hannevig Bros. Ltd. itself makes clear, cannot bind me, and I am entitled to look at the matter afresh. I do not conclude that what occurred here was an error affecting the expression of the arbitrator's thought. It seems to me that this was more like an error in the thought process itself, in the sense that it did not accurately express their intention, but it did so in clear words.[28]Nor, in my judgment, can this be said to have been a computational error which would relate to an error of calculation, adding additional noughts or simply incorrectly adding up or subtracting or multiplying. Nor is it on any basis a typographical error. I am persuaded by Mr. Key's submission that the Roman law concept of ejusdem generis applies, as it has for so many years in the English courts, and that an error of a similar nature must be something close to clerical, computational or typographical, but not precisely falling within those categories. I do not conclude that it does.[29]In those circumstances Mr. Temmink makes a broader submission - that is, effectively that although I am not bound (see Sutherland), and although changes of mind are disapproved of, this is a situation in which the arbitral tribunal thought that it had the power to make the correction and acted, on the face of it, in accordance with that power, in the way that I have recited. Clearly the Arbitrators were acting bona fide. Consequently, he submits that he is entitled to rely on the decision in the House of Lords in the appellate decision in Lesotho (to Morrison J's first instance judgment in which I have already referred) [2006] 1 AC 221, per Lord Steyn. In a speech of which the relevant parts were agreed by the rest of their Lordships, he addressed a similar argument to that which is now before me, where the arbitrators had incorrectly made an award in the wrong currency, in the sense that it was not an award which was permitted by the terms of the contract under which they were arbitrating. They had power under s.48(4) of the Act to award damages and s.49(3) to award interest. It was asserted that they had exceeded those powers by what they did. Their Lordships concluded that this was not an excessive power within s.68(2)(b), but an incorrect exercise of power under ss.48 and 49 which they did in fact have. Lord Steyn said this: "31, By its very terms, section 68(2)(b) assumes that the tribunal acted within its substantive jurisdiction. It is aimed at the tribunal exceeding its powers under the arbitration agreement, terms of reference or the 1996 Act. Section .68(2)(b) does not permit a challenge on the ground that the tribunal arrived at a wrong conclusion as a matter of law or fact. It is not apt to cover a mere error of law ...[32]In order to decide whether section 68(2)(b) is engaged it will be necessary to focus intensely on the particular power under an arbitration agreement, the terms of reference, or the 1996 Act which is involved, judged in all the circumstances of the case. In making this general observation it must always be borne in mind that the erroneous exercise of an available power cannot by itself amount to an excess of power. A mere error of law will not amount to an excess of power under section 68(2)(b)". That, Mr. Temmink submits, must be seen in the context of a case in which there is in fact no right of appeal under s.69 against any error of law which the arbitrators may have made.[30]In those circumstances I must consider whether Mr. Key is right that this is not a matter which falls within the error of law principle as indicated by Lord Steyn in Lesotho, i.e. an erroneous exercise of an available power, or whether it is, as he submits, an act which is without a power, now that I have concluded, that there was not in fact a clerical, computational or typographical error, or any similar error, which they were correcting, even if they purported to do so. I cannot accept that it is right, as Mr. Temmink would wish to assert, that in some way I am to be influenced, if not bound, by the way in which the arbitral tribunal expressed itself, or by the fact that the ICC has approved the course taken. Nor, in my judgment, can it be right for me to conclude that the fact that the Arbitrators were acting bona fide in expressing that view is relevant - otherwise there could never be any challenge to what arbitrators have done, and it must always be an valid exercise of their power provided that they say so and/or believe so, as they plainly did here.[31]This was simply a howler which was sought to be corrected. It may have involved a change of mind. It may not. In my judgment this is not a correction which fell within Article 29. It was not the kind of exercise which is referred to by Lord Steyn in Lesotho. In Lesotho, on a proper construction, the arbitrators simply went wrong within their powers to award damages and/or interest, and got it wrong by reference to the terms of the contract or otherwise. In this case, the arbitrators simply did not have the power to correct at all. In my judgment there was consequently an irregularity falling within s.68(2)(b). It was an irregularity which was serious in its effect, because it had the result of transferring a position in which the Claimant did not have to pay a figure of between £1.5 million and £3 million into one in which they did. But, that is not the end of the story under s.68, because (as is clear from the terms of s.68, which I have already recited) a serious irregularity as defined by the Act is one which not only falls within one of the sub-sections (which this does), but which the court considers has caused, or will cause, substantial injustice to the applicant. What the arbitrators did was to correct the howler. It is one which, as I have indicated, was one which had a serious effect on the parties.[32]Mr. Key makes two (if I can call them this) key submissions. First of all, he submits that the exercise of deciding whether I consider that the irregularity - the purported correction - has caused, or will cause, substantial injustice to his clients should not involve a re-opening, a re-trial of the arbitration or any kind of traversing over the issues: certainly not in this case because, he submits, if interest is to be looked at again then he would wish to look again at the issue of discount, and the date at which the damages ought to have been awarded. He has helpfully produced an unreported authority of the Court of Appeal in Warborough Investments Ltd. -v- S. Robinson & Sons (Holdings) Ltd. [2003] EWCA (Civ) 751 which itself cross-refers to an earlier Court of Appeal decision called Checkpoint -v- Strathclyde Pension Fund [2003] 14 Estates Gazette, 124. In Checkpoint Ward LJ is cited by Jonathan Parker LJ to have concluded that, "In determining whether an irregularity in a rent review arbitration had caused substantial injustice to the applicant, the court should not attempt to decide what the award would have been had the irregularity not occurred because [as he put it] it is all too hypothetical for me". But, it is quite plain, as appears from the next part of Ward LJ's judgment, as cited by Jonathan Parker LJ, that that would not, and should not, involve, a full re-assessment of the pros and cons in the arbitration. Jonathan Parker LJ says at para. 58, "In the instant case I am not satisfied that the case which counsel would have put, had he been afforded the opportunity to submit a further report along the lines indicated in his witness statement, would have been so different as to justify the conclusion that the lack of that opportunity in itself caused a substantial injustice regardless of what the outcome of the arbitration would have been. Nor, for that matter, am I satisfied that the outcome in that event would have been materially different, so that as long as one does not need to go into great detail and become 'too hypothetical' it must be right, in my judgment, that the consequences have got to be looked at by a court in order to decide whether the irregularity has caused substantial injustice". I shall return to that.[33]His second submission is that the exercise to be carried out under s.68 is a very simplistic one. It should only look at what the position was before the irregularity and what it was afterwards. In this case he submits that before the irregularity his client did not have to pay approximately £2 million of interest. After the irregularity it does have to pay £2 million worth of interest. That makes them £2 million worse off. That consequently is a substantial injustice to them.[34]I address those two points. First, in order to decide whether there is a substantial injustice, I am not at all persuaded that it is simply a question of before and after. If it were, then the provisions of s.68 would say, if they said anything at all, an irregularity which has 'a substantial effect' or 'has had a substantial effect on the applying party (the applicant)' - just enough to drive away matters which are de minimis. That is quite plainly not what is provided by s.68. It is my judgment that the cap on the exercise of s.68 powers is not simply one by reference to triviality, but is also so that there will not be an intervention by the court in respect of s.l68 unless it is satisfied that the irregularity has caused substantial injustice to the applicant.[35]As for the degree to which this involves re-visiting the arbitration, that will be a question of fact. There will be many occasions on which the court will simply not begin to be interested, as Ward LJ plainly concluded he should not be, in re-arguing or re-fighting the arbitration, and considering what might have happened if there had not been a particular procedural irregularity. The case here is a very straightforward one. I have been content to look at the history - and done so at the invitation of Mr. Key - because it is, as I have summarised it earlier in this judgment, not a complicated one. The existence of the discount depended entirely upon the date on which the damages fell to be assessed. If they fell to be assessed at 1st January, 2005 then there would be, on the one hand, arguably a discount - certainly one for early payment - possibly for other reasons; on the other hand, perhaps a mark-up or reconsideration to take into account the arguments of the Claimant. If, on the other hand, the damages were calculated by reference, as Mr. Boswood Q.C. in the end drove the argument, simply to looking (the period of time having expired, or nearly expired) at what sums would, on the balance of probabilities, have fallen due to the Defendant, as things in fact occurred, then there would be no room for discount, even the kind of tiny suggested discount which Mr. Caldwell in the end was holding out for. Leaving aside discount, there would be no room whatever for any intervention in respect of interest. Interest, of course, is a matter of discretion. But, that discretion has to be exercised judicially. Mr. Temmink has referred - and Mr. Key did not in any challenge the proposition - to one of the many commercial authorities which indicate that in ordinary course interest will be payable on commercial debts. The case which Mr. Temmink particularly relied upon is the well-known case of Panchand Freres SA v R. Pagnan & Fratelli [1974] 1 Lloyd's Rep 394, and in particular the words of Lord Denning MR at 411: "In a commercial transaction, if the plaintiff has been out of his money for a period, the usual order is that the Defendant should pay interest for the time for which the sum has been outstanding".[36]No reason for not awarding interest in this case has been suggested by anyone - not by the Arbitrators, who, the minute the error was pointed out to them, explained that it was a wholly unintended error, and, indeed, contrary to their intention; and not today by Mr. Key. I conclude that there is no basis whatever in which, but for the howler, the Arbitrators would have done anything other than award interest exactly as they did do once the error was pointed out to them leading up to the Addendum. A decision not to award interest was simply wrong, unjust, and unthought. If there were an appeal available - which there is not - then albeit that the award of interest is within the discretion of arbitrators, I cannot conceive that there would not have been a successful appeal under s.69 by the Defendant as appellant in respect of what occurred here. Of course, we do not need to speculate, because the Arbitrators have told us that that was not what they intended. We also do not need to speculate as to what would have occurred had the error not taken place, because we know.[37]In those circumstances there is no difficulty, such as was foreseen by Ward LJ in Checkpoint, in analysing what has occurred here and what would have happened at the various stages. But for the original howler, this error which causes substantial injustice to the Defendant by depriving them of approximately £2 million, would not have occurred.[38]I come to the second proposition of Mr. Key, what he calls the straightforward syllogism, that all that is required is to reverse the procedural irregularity. A reversal of this procedural irregularity would then cause that substantial injustice - namely, the substantial injustice which was itself caused by the howler. In my judgment it cannot be possibly arguable that it would cause substantial injustice to the Claimant if the procedural irregularity were reversed and the correction of the howler prevented, if doing so would cause, on the one hand, a substantial injustice to the Defendant and, on the other, a wholly undeserved windfall to the Claimant.[39]Mr. Temmink drew my attention to two interesting cases in which the same very experienced commercial Judge was involved, both of them relating to applications to correct and remit under s.22 of the 1950 Act, now gone, as I described earlier in this judgment. The first is Fuga A.G. -v- Bunge A.G. [1975] 2 Lloyd's Rep 192 in front of Donaldson J (as he then was) in the Commercial Court. He said this, in relation to a case in which there had been a serious error by the arbitrators (at 194): "In the present case if the award is not remitted, the gravest injustice will be occasioned to Fuga. It would have cost them some $30,000. This will arise from no fault upon the part of Fuga. It will arise from a bona fide slip by the arbitrators and by a refusal by Bunge to allow them to put it right. If it is remitted, the only prejudice to be suffered by Bunge will be that they will be deprived of the fruits of that refusal. As I have already said, I am astonished at Bunge's attitude, which has absolutely nothing to commend it. I should be sorry if the day ever came when a court was unable to intervene in such circumstances. Happily, I am satisfied that that day is a very long way off".[40]The other passage is in the judgment of Sir John Donaldson, M.R. (as he had now become) in The Montan (already referred to) in the Court of Appeal, where he said (at 632B): "In the instant case the arbitrator has accidentally made a major error which, if uncorrected, would lead to the charterers paying the owners, when it is the owners who should be paying the charterers. No court could lend the power of the state to the enforcement of such an award, and no court should stand by when it has power to correct such an accidental error. I stress the word 'accidental'. The only matter which has caused me any surprise or concern - and surprise is an understatement - is that the owners have sought desperately to take advantage of this accidental error in order to secure a windfall profit to which they have no claim whatsoever in law or justice. Such conduct does them no credit whatsoever".[41]As Mr. Key naturally points out, both those two cases were decided when the powers of the court were much wider, under s.22. Like Sir John Donaldson, however, I would be depressed if this court did not have the power to act in such a circumstance and am concerned that a court should not lend itself to the perpetuation of a position which would lead to such injustice. Fortunately, as I said earlier in the judgment, when s.22 went there was a provision retained in s.68 - the reference to substantial injustice - which is a trammel upon the automatic use of s.68, as I have described.[42]There was commentary on the Arbitration Bill by the Departmental Advisory Committee on Arbitration Law, chaired by Saville LJ (as he then was) in February 1996, which discussed and emphasised the substantial change to the law which was intended by s.68. But, in the extract from that report which is included in Mustill and Boyd's Companion Volume, to which I have earlier referred at p.441, the Committee said as follows at para.280:
"Having chosen arbitration the parties cannot validly complain of substantial injustice unless what has happened simply cannot on any view be defended as an acceptable consequence of that choice. In short, Clause 68 is really designed as a long stop only available in extreme cases where the tribunal has gone so wrong in its conduct of the arbitration that justice calls out or it to be corrected."
In this case justice called out to the arbitrators for it to be corrected and they willingly succumbed to its call, as I have described.[43]I have no doubt whatever that this case falls slap within the limit of s.68, that limit being that the court will not intervene to set aside what would otherwise be a procedural irregularity, where such irregularity has not caused substantial injustice to the applicant because to remove it would cause substantial injustice to the other party. I therefore dismiss this application by the Claimant under s.68.[44]In those circumstances I do not need to deal with the cross-application by the Defendant under s.68, because it is entirely responsive. Its basis is that if the application by the Claimant were successful, and paragraph 13 of the Addendum were set aside, then the original award containing the howler would stand, and it is that award which would then be challenged by reference to s.68.[45]But, because there has been some argument on it by Mr. Key, I shall say something of it, even though obiter. The first point I should make clear is that, although a point was taken by the Claimant that the Defendant's application was out of time, that was, in my judgment, plainly unarguable. The background is that a challenge under s.70(2) by way of s.68 must be brought only after any available arbitral processes of appeal or review are exhausted. In this case there was an arbitral process of review, albeit that in this case it was successful so far as the Defendant is concerned. S.70(3) provides that: "Any application or appeal must be brought within twenty-eight days of the date of the award, or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process".[46]It was the Claimant who, having lost the review, was entitled to, and did, complain by way of challenge, as we know - unsuccessfully as it turns out. The Defendant had no need to challenge the result of the review, because it had successfully eliminated the complaint that it would otherwise have been making in relation to the award. Once the application was made by the Claimant, then the Defendant needed to put in its own cross-challenge. It did so promptly. Strictly speaking, it was more than twenty-eight days after the date of review, for the reasons I have given - namely, that it was only once a timeously application by way of challenge had been made by the Claimant that the Defendant needed to put in its own challenge to the original award. There is power to extend time, as is made clear in the decision of Aoot Kalmneft -v- Glencore International A.G. & Anr. [2002] 1 Lloyd's Rep, 128 and Nagusina Naviera -v- Allied Maritime Inc. [2002] EWCA Civ 1147 CA. In the event, Mr. Keys did not pursue his objection to the grant of extension of time to the Defendant, and in any event I would have granted it, and I do.[47]So far as that cross-application is concerned, it was, as I have described, a challenge to the award if it had not been corrected - that is, if the Claimant's application had failed.[48]There was reference made to s.68(2)(f) of the Act by Mr. Temmink, but I asked him whether it was pursued, and he indicated that it was not.[49]The only basis upon which this application has been pursued today is by reference to s.68(2)(i) (irregularity admitted by the Tribunal) which I have already read. Mr. Key submitted that it would do him no good if he were to be successful, because it only arises if he had been unsuccessful in resisting the setting aside of the Addendum at the hands of the Claimant. But I do not agree. If and insofar as the original Award stands, so far as the award of interest is concerned, if there were shown to be serious irregularity in that respect, then I am empowered by s.68(3) to set aside the Award in part - that is, that part which relates to the interest - and to remit it, in part, to the Tribunal for reconsideration. So, even though the Tribunal may not have had power to correct, I could have directed them to reconsider.[50]But the more powerful argument that Mr. Key puts forward is that the howler does not constitute a serious irregularity within s.68(2). His first submission was, effectively, that the word 'irregularity in s.68(2)(i) must be construed by reference to the other irregularities in s. 68(2). Although it appeared to me to be suggested in his skeleton argument that s.68(2)(i) should be construed ejusdem generis, he did not pursue that argument, which in my judgment could not be supported, for the obvious reason that s.68(2) as a totality is certainly an exclusive definition of serious irregularity, but (a) to (h) plainly set out examples of irregularities which can stand on their own, and (i) is then any irregularity which is admitted by the Tribunal. It must, by definition, not be identical to those under (a) to (h), or the admission by the Tribunal would not elevate it into a separate irregularity or be necessary. It must by definition be an irregularity other than those defined in (a) to (h), which falls within s.68(2) because of the admission by the Tribunal. The admission here is contained in what would then be a purported correction in the Addendum and, in particular, in the words of paragraph 13 which, even if the correction was set aside, would still stand as being the statement by the Arbitrators.[51]So, the issue for me to decide, if this application required to be decided, would be whether the howler, the serious error, which had an impact on some £2 million worth of interest, one way or the other, admitted by the Tribunal, was or was not an irregularity in the conduct of the proceedings. On the one hand, Mr. Key submits that, although there is no authority on the section, there is enough emphasis in the cases in the textbooks that, particularly where there is no appeal available against an arbitrator's decision, what is in fact an error of law cannot be challenged. It would be strange if it could be challenged simply because the Tribunal admitted to it. On the other hand, Mr. Temmink submits that, given that all the ordinary kinds of irregularity are defined in the other sub-paragraphs, this must be something other than those. One could hardly think of a more serious matter than a serious error of fact accepted by the Tribunal and of substantial effect.[52]Given that this is entirely free of authority and that any opinion I expressed as to it would be obiter and unnecessary in the light of my decision, I shall leave this for another occasion. In those circumstances I make no decision in respect of the cross- application and limit myself to finding in favour of the Defendant on today's proceedings. I shall make an order giving leave to enforce the award as corrected, as both parties now accept I should, in terms which I understand will be agreed and which will not include any express figures. I want to thank both counsel for their argument and both parties for the excellent way in which the papers have been prepared. MR. TEMMINK: My Lord, thank you. I am asking for my costs, both of the claim advanced by CNH and also of what I think your Lordship described as my 'necessary cross-application'. MR. JUSTICE BURTON: Are they different, the two sets of costs? Probably they have been put in different schedules, but looked at in the round. MR. TEMMINK: They have been put in different schedules by my solicitors. A slightly artificial exercise has been undertaken in splitting the schedules by my solicitors. Allen & Overy, for CNH, have not split their schedules. They just say, "Here are our costs of today" essentially. I say it is a slightly artificial exercise because, for instance, my brief fee has been split putatively half and half between the two applications. I think it was a recognition that theoretically it was possible to win on one application and lose on the other - probably lose on one and win on the other. In any event, I ask for my costs of today. MR. JUSTICE BURTON: You have won on the day MR. TEMMINK: I have, yes. MR. JUSTICE BURTON: Mr. Key, what do you say? We are not talking about assessment at this stage. Just in terms of the principle? MR. KEY: My Lord, quite clearly PGN, as Defendant, must have the vast majority of its costs, having succeeded on CNH's application. I have a few points to make. Let me deal with the points of principle first ... (indistinguishable) ... That is on that application. A slightly different point arises in relation to the PGN cross-application because although we accept that the intent behind it was reactive to the CNH application, and therefore the argument is that if the CNH application had not been made, the PGN cross-application would never have been made -- Of course, we maintain our position that it was bound to fail. Now of course, we have heard the judgment. That position is still open. We say certainly that it would be wrong just to give complete wholesale costs in relation to the cross-application against that background. That is the broad position, my Lord. MR. JUSTICE BURTON: Do you want to say anything? MR. TEMMINK: Yes. My Lord, our application was entirely reactive. Had it not been for CNH's application ---- MR. JUSTICE BURTON: I suppose you did not need to make it. MR. TEMMINK: I could have put all my eggs in one basket and hoped that your Lordship would find against their application. That would have been brave. The fact is that their application was ill-conceived, mis-conceived, or at least your Lordship found against them. In those circumstance had they not brought it, we would never have had to start our application. So, I say, "Look, the reason we produced our application was because you started yours and so having lost that, we should be entitled to ours". MR. JUSTICE BURTON: Thank you.[53]The order I shall make is that the costs of the two sets of proceedings should be treated together. I am sure they would be on any assessment. I shall order that the Claimant pay the Defendant three-quarters of the total cost of the proceedings. It seems to me that (a) the vast majority of the costs would have been incurred in any event, and were really incurred on the main application, but that it was not absolutely necessary for the Defendant to have brought their own application. Insofar as they did, they did not actually win on it, although they did not lose. So, although I certainly shall not order any costs in favour of the Claimant it is appropriate for me to say that three-quarters of the total costs of the Claimants are to be paid by the Defendant and the rest, of course, will lie where they fall. MR. TEMMINK: My Lord, is it your intention to assess those costs now? MR. JUSTICE BURTON: I am wholly hostile to summary assessment because I think everybody always loses out, either getting too much or too little. The whole exercise of nods, winks and 'but, say' is just totally counter-productive in relation to substantial sums of money. However, I am an enthusiast for interim orders. Now you put in two schedules - one for £38,000 and one for £23,000. Am I right? MR. TEMMINK: Yes. I think the total of my costs are £62,100. MR. JUSTICE BURTON: I had a look somewhere at the other side's costs. MR. TEMMINK: They come to a very reasonable, they would say, nearly £129,000. So, double ours. MR. JUSTICE BURTON: Yes. So, £61,000 is pretty good, is it not? MR. TEMMINK: Well, on the basis that Allen & Overy put forward their costs as being a reasonable estimate of the costs incurred in running this case it seems hardly a good basis on which to resist. MR. JUSTICE BURTON: Mr. Key, what do you say about the £61,000? It is half yours. You had a lot more to do. MR. KEY: We had more to do, my Lord, but I think realistically it is very difficult for me to say that £61,000 is not a right starting point. MR. JUSTICE BURTON: Is there any point in my saying an interim of £50,000 and the balance to be assessed if not agreed? Is it not more sensible, given that it is wholly unlikely you are going to be able to get anywhere on the £61,000 for me simply to summarily assess them at £61,000? I am really rather in your hands. But, given what I declared as my own normal position, it is just rather different when it is so clear that the other side's costs are so much more. MR. KEY: Yes. If I may just take ten seconds, my Lord? I have been handed something which may explain it. MR. JUSTICE BURTON: Yes, of course. MR. KEY: (Pause whilst taking instructions): My Lord, it is a point which I do not think affects the ultimate decision: simply those behind me want it rightly to be known that ultimately the hours that everybody has spent -- If you stripped out the preparation of the bundle, the hours are almost the same on both sides. It is an hourly rate which leads to the big difference in the preparation of the bundles. That does not affect the underlying point which your Lordship and I were discussing. We are broadly content with the way forward which your Lordship was suggesting - which would be that there is a sum which is summarily assessed to be by way of an interim payment leaving the balance of whatever to be challenged by way of an assessment proceedings if necessary. Of course, that interim payment figure -- We have not yet taken account of the three-quarters part. MR. JUSTICE BURTON: You are absolutely right. MR. KEY: So, we start with £61,000. We multiply that by three-quarters ---- MR. TEMMINK: No. No. No. Before we get misled into the wrong maths -- I think your Lordship ordered that three-quarters of our claim should be paid. So, it is not £61,000 which is the total of both claims ---- MR. JUSTICE BURTON: No. I have said three-quarters of everything. SPEAKER: Total of cost of proceedings. MR. TEMMINK: I see. MR. JUSTICE BURTON: You are doing yourself down. MR. TEMMINK: In that case, I misunderstood. I thought you had given me all of my costs of defending their claim because I had won on all of that, and three-quarters of the cost of ---- MR. JUSTICE BURTON: No. I said to take the whole lot together. I was of the view that the bulk of the costs would have been -- In fact, if anything, I had forgotten about the £38,000/£23,000. I am more favourable, am I not, to take three-quarters? MR. TEMMINK: I will have to do the maths! MR. JUSTICE BURTON: I am giving you £45,000 instead of £38,000. MR. TEMMINK: Yes. I am instructed that if you are minded to assess costs summarily at £45,000, then that would be ---- MR. JUSTICE BURTON: If it were summarily assessed it would assessed as £45,000. If I was to make an interim payment, it would be a little less than that. MR. TEMMINK: Yes, I understand that. MR. JUSTICE BURTON: Anything else either of you want to say? (After a pause): I am going to make a summary assessment of £45,000. The next question is the Judgment. Is there anything that shivers your timbers in the Judgment? MR. KEY: Speaking purely as an individual counsel here, there is nothing which concerns me greatly. Of course, that does not mean that our client's position would change. MR. JUSTICE BURTON: Nothing has been said about whether it was good or bad to have terminated the contract. I have recited facts which are going to be in the public domain. I think only once have I named the companies. It puts people to a lot of trouble in terms of anonymising. I do not think there is any ground for it MR. KEY: I think ultimately our position, my Lord, would be reflected in saying that we do not oppose whatever your Lordship decides. MR. JUSTICE BURTON: I think it should be made public. MR. KEY: The only point which is being noted to me is the issue of the wrongful termination finding is not, as far as we are aware, in the public domain. Whether that is something which could be ---- MR. JUSTICE BURTON: I think it is bound to be in the public domain, is it not? The fact that there is an award for damages for repudiatory breach of contract -- Anyway, I do not see that there is any potential sensitivity in relation to that. MR. KEY: We have nothing further to say, my Lord. MR. JUSTICE BURTON: Thank you. Apart from anything else, enforcement of the Award goes into the High Court office. It will be known. MR. KEY: My Lord, one final point - at least on our side - is the question of permission to appeal. I can address that briefly. Significantly, of course, as your Lordship will undoubtedly recall, the only opportunity an unsuccessful Claimant has to get permission is before a High Court Judge. MR. JUSTICE BURTON: Yes. What I say is final, yes. MR. KEY: I will not repeat the arguments - your Lordship has already heard them. But, we do ask for permission to appeal on the point in relation to the meaning of substantial injustice. That is the point upon which we ask for permission to appeal, which would preserve both arguments, but majoring principally upon the comparator argument which I articulated. MR. JUSTICE BURTON: Can you formulate it? That I erred in law in concluding that -- What? MR. KEY: That when one is assessing whether a Claimant has suffered substantial injustice by virtue of a procedural irregularity, one compares (1) the position which exists by reason of the irregularity with (2) the position which would have existed if the irregularity had not occurred. MR. JUSTICE BURTON: I must not consider whether the effect of undoing the procedural irregularity would cause substantial injustice to the Defendant and therefore substantial benefit to the Claimant. Mr. Temmink? MR. TEMMINK: My Lord, I have nothing to say about the matter. You have made your findings in the matter. MR. KEY: My Lord, the position remains as I described. We do ask for that permission to appeal. I say that generally it is in terms of what I call the substantial injustice point - the point upon which your Lordship has found against the Claimant. I have highlighted the particular point which we say is perhaps strongest. But, all points we say are relevant. MR. JUSTICE BURTON: No, I shall not grant permission to appeal. I am quite conscious of the fact that this means the end of the road for the Claimant and that a good deal of money is at stake in relation to my Judgment. But, Mr. Key, as you have said yourself in the course of argument, the intention of arbitrations is normally intended to be finite and not to be re-litigated. Consequently, if there is an intended express limitation on the right of appeal therefore it is not every case in which leave to appeal would be given - otherwise the limitation of leave would not exist. I therefore have to look at this entirely on its own merits without regard to the fact that my decision is final. I am satisfied, not least because I am acting in accordance with the wishes of experienced arbitrators, as opposed to in any way overturning them, that my decision is correct. I would think it to be extraordinary if, in judging whether a procedural irregularity has caused substantial injustice, it is not a necessary part of that conclusion to consider whether there would be substantial injustice to the other party if the irregularity in question were set aside and/or that substantial injustice would be done if that course were taken. I therefore refuse leave to appeal. Thank you. __________

Cited in 4 later judgments