A v A[2021] EWHC 1889 (Fam); [2021] 1 WLR 5393

November 30, 2021 Posted by:

Following Haley v. Haley [2020] EWCA Civ 1369, [2021] 2 WLR 357, [2021] 1 FLR 1429, this important case sets out the procedure a party should use if they want to challenge an arbitral award or where a party wishes to implement an arbitral award in the face of opposition from the other party.

The case concerns competing applications: a wife’s application, following the party’s divorce, for the husband to show cause as to why he should not be held to the terms of an arbitration award, and the husband’s application to challenge the award pursuant to s 68 of the Arbitration Act 1996. Mostyn J dismissed the husband’s application and held that the award was not ‘wrong’.

In an appendix to the judgment Mostyn J gave detailed guidance, approved by the President, Sir Andrew McFarlane P, on the correct procedure to be adopted where there is a challenge to an arbitral award. It is guidance which is now essential reading for any lawyer who is seeking to implement or challenge an arbitral award.

In summary, he said that:

  • Very commonly, the parties will be jointly applying for a consent order implementing the award. In such circumstances the application for a consent order will follow the normal path in FPR r 9.26 and FPR PD 9A, para 7.1.
  • A Form A must be filed if that has not already been done. No MIAM is necessary.
  • Once there is a validly issued Form A on the court file the application challenging the award, or by the party seeking to implement the award, should be made in Form D11—the standard application notice—using the Part 18 procedure.
  • Where there is a challenge to an arbitral award the application should be placed before a specialist circuit judge who hears financial remedy appeals. That judge should then conduct a “triage/paper” exercise applying the permission to appeal test. If she takes the view that the objection to the arbitral award would not pass that test then she can make an order in the terms of the arbitral award without more ado and penalise the party seeking to challenge the award in costs.
  • However, if the circuit judge is satisfied at the “triage/paper” stage that the permission to appeal test is passed then she will set the application down for an inter partes hearing at which the court will decide whether the arbitral award is wrong.

He attached to that appendix a pro-forma initial ‘gatekeeper’s order’ which, he said, will be added to the Compendium of Standard Orders as Order no. 6.5.