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A v A (arbitration: guidance) [2021] EWHC 1889 (Fam) – Procedure to follow when seeking to confirm or to challenge arbitral award.

Posted on 29 July 2021

The parties had reached a significant degree of agreement between them as to the terms of a financial settlement, but a number of issues remained, which they decided to resolve through arbitration. Once the award had been made, the wife sought an order of the Family Court, giving effect to the award. The husband sought to challenge the award. A number of applications were made by the parties, including applications by the husband under s.68 and s.69 of the Arbitration Act 1996 and procedurally the matter took a rather torturous route before coming before Mostyn J.

One matter that the husband had challenged was that the arbitrator had made a decision regarding an aspect of the case that the parties had initially intended to leave unresolved (to be determined by future litigation if necessary). Mostyn J considered that an arbitrator may make decisions on issues the parties have not invited a decision on by way of "filling in the gaps", as a judge can do when all matters in dispute have not been dealt with.

Mostyn J also noted that the effect of the decision of the court of Appeal in Haley v Haley [2020] EWCA Civ 1369 was to make a challenge to a financial remedy arbitral award under section 68 of the Arbitration Act 1996, or an appeal against such an award under section 69, entirely redundant. An arbitral award made in financial remedy proceedings was to be challenged in the same way as an appeal would be made against the order of a judge. In those circumstances, a challenge to an arbitral award should be placed before a specialist circuit judge who hears financial remedy appeals. That judge would conduct a triage/paper exercise, applying the permission to appeal test. If the party challenging the award does not satisfy that test, then an order can be made in the terms of the arbitral award and costs awarded if appropriate. If the party challenging the award does satisfy the permission to appeal test, the matter would be listed for an inter partes hearing at which the court will decide whether the arbitral award is wrong. Mostyn J also set out (with approval of the President) the correct procedure for parties to follow when one of them wishes to either challenge an award, or have it made into an order of the court. He attached a pro forma initial gatekeeper's order, which will be added to the Standard Orders compendium.

Barbara Reeves says:

Parties are increasingly turning to non-court dispute resolution, including mediation and early neutral evaluation (as well as private FDRs) to resolve matters between them. The ‘much to be welcomed scheme’ of family arbitration is once again finding support from the leading members of the judiciary with Mostyn J. providing further clarity on litigating arbitral awards by setting down helpful procedural guidelines. 

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