Webster v Dyrud

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Taylor-Alexander, J.
• Judgment Date: 06 April 2018
• Neutral Citation: AI 2018 HC 5
• Docket Number: Claim No. AXAHCV 2017/0034
• Date: 06 April 2018

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

ANGUILLA CIRCUIT

(CIVIL)

A.D. 2017

Taylor-Alexander, J.

Claim No. AXAHCV 2017/0034

In the Matter of the Arbitration Act Chapter A105 of the Revised Laws of Anguilla

And in the Matter of an Application for Leave to Appeal the Award of John Bassie Sole Arbitrator, Issued on the 11th of November 2016 and Corrected on the 9th of May 2017;

Palmavon Webster

Respondent/Applicant

and

John Dyrud

Claimant/Respondent

Appearances on Paper:

Ms. Rayana Dowden holding for John Carrington QC for the Applicant

Ms. Jean Dyer instructed by Keithley Lake and Associates for the Respondent

Arbitration - Award — Appeal — Whether question of law likely to substantially affect rights of one or more of the parties — Whether decision of arbitrator on question of law plainly wrong — Application dismissed — Arbitration Act — Limitation Act.

RULING ON PAPER SUBMISSIONS

Taylor-Alexander, J.

1 The Applicant seeks leave to appeal the award of the Arbitrator John Bassie issued on the 9 ^th of May 2017. The grounds of appeal are contained in the application filed on the 2 ^nd of June 2017, and are reflected thus:—

• i. “The application is brought pursuant to the court's authority under the Arbitration Act 1996 Section 69(2) to grant a party to arbital proceedings leave to appeal to the court on a question of law arising out of an award made in the proceedings.

• ii. The questions of law set out in the schedule hereto were questions which the Arbitrator was asked to determine in consideration of his award.

• iii. The Determination of these questions will substantially affect the rights of the parties to the Arbitration.

• iv. Despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine these questions

• v. The Applicant has already asked the Arbitrator to correct the date of the award in accordance with the powers granted under Section 70 of the Arbitration Act.

• vi. The Applicant has also applied for a review by the Arbitrator of the award under S57 of the Arbitration Act.

• vii. The Applicant has therefore exhausted all available arbital processes, appeal or review and any available recourse under the Arbitration Act.”

Appeal on a point of Law

2 Appeals from an award made on Arbitration are governed by Arbitration Act Chapter A105 of the Revised Laws of Anguilla which applies the Arbitration Act of the UK as amended from time to time and all the provisions of the Act, so far as the same are applicable, mutatis mutandis apply to all proceedings relating to arbitration within Anguilla. Any application for leave to appeal must be brought within 28 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. The Applicant has met the time requirements.

3 The court's Jurisdiction on an application for leave to appeal under Section 69(3) of the Arbitration Act 1996 of the United Kingdom, is engaged thus:—

“Leave to appeal shall be given only if the court is satisfied—

• (a) that the determination of the question will substantially affect the rights of one or more of the parties,

• (b) that the question is one which the tribunal was asked to determine,

• (c) that, on the basis of the findings of fact in the award—

  • (i) the decision of the tribunal on the question is obviously wrong, or

  • (ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and

• (d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question.

• (4) An application for leave to appeal under this section shall identify the question of law to be determined and state the grounds on which it is alleged that leave to appeal should be granted.

• (5) The court shall determine an application for leave to appeal under this section without a hearing unless it appears to the court that a hearing is required.

• (6) The leave of the court is required for any appeal from a decision of the court under this section to grant or refuse leave to appeal.”

4 The court's general approach to appeals in awards at arbitration is as expressed in the dicta of Bingham J in Zermatt Holdings SA v Nu-Life Repairs Ltd (1985) EGLR 14. He said:—

‘as a matter of general approach the courts strive to uphold arbitration awards. They do not approach them with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards and with the objective of upsetting or frustrating the process of arbitration. Far from it. The approach is to read an arbitration award in a reasonable and commercial way expecting, as is usually the case, that there will be no substantial fault that can be found with it.’

5 It is on the statutory authority and this general guidance, that I now assess the application filed.

The question of law is one that the tribunal was asked to determine;

6 The Appellant has listed the questions of law under challenge as follows:-

• (i) Whether the Partnership Withdrawal Agreement had been concluded between the parties in May 2007;

• (ii) Whether Cause 2.1 of the Partnership Withdrawal Agreement which required the Applicant to pay to the Respondent such sums which the account of the firm, when agreed, show as the amount of outstanding loans made by the Respondent to the firm is specifically enforceable;

• (iii) Whether Under Anguillan Law Specific Performance is available for an agreement to pay a debt.

• (iv) Whether the Arbitrator had the jurisdiction in enforcing clause 2.1, to dispense with the requirement that the parties should agree the accounts and determine himself the amounts due from the Applicant to the Respondent based on unaudited financial statements which the parties had not agreed.

• (v) Whether in light of the finding of the Arbitrator that the Partnership Withdrawal Agreement created an obligation on the part of the Applicant to pay the Respondent, a specific sum of money, the recovery of such debt and the recovery of interest thereon under the Partnership Act should be subject to the Limitation Act Chapter L60 on the basis that such debt would have accrued no later than May 2007, the date on which the Arbitrator found that the agreement was concluded and any liability to pay interest under the Partnership would have accrued prior to December 2006 when the Partnership was dissolved.

• (vi) Whether the Arbitrator correctly characterised the payment of $118,165 as a loan to WDM and whether the Arbitrator was justified in piercing the corporate veil of Norwego Ltd, which the evidence disclosed paid this sum so as to conclude that this was a sum due from the Applicant to the Respondent.

7 I have had regard to the List of Issues Agreed and Not Agreed included at Tab 5 of the Index of Documents, and which was relied on by the Arbitrator to structure his award. I have also had regard to the Claim made and the Counterclaim, and the submissions of the parties. I have assessed each ground referred to as a question of law, asked to be determined by the tribunal. I am satisfied that although not characterised in the same language used in the List of Issues Agreed and not Agreed, all of the issues with the exception of one was placed before the Tribunal for determination. The exception being Specific Performance as a remedy available under the law of Anguilla. I agree, and accept the Submission of the Respondent, that this issue was not placed before the tribunal. What in fact the tribunal was asked to determine was whether the Respondent was entitled to Specific Performance of the PWA. The two issues are wholly separate, one being of the availability of the remedy and the other being whether a party has established a right to the remedy. It is the latter issue which was placed before the tribunal.

8 I note however, that the Applicant, in her submissions, addressed the latter issue, and it is therefore the latter issue to which I have addressed my mind.

The determination of the question will substantially affect the rights of one or more of the parties.

9 This ground is primarily directed at how important the point is in determining the rights of the parties. In the Northern Pioneer case, Lord Phillips opined that for a question of law to substantially affect the rights of one or more of the parties would involve that point of law affecting the entire outcome of the arbitration, not a small part of the award.

10 The broad terms of the referral to arbitration was to determine whether the Partnership Withdrawal Agreement (PWA), was a binding and enforceable Agreement. The Agreement in effect sought to dissolve a partnership and to secure the settlement of sums due and owing under the PWA. The finding of the Arbitrator that the Partnership was dissolved and that the Appellant is required to pay US$887,436.40 together with interest and the sum of US$118,165.25 is at the heart of the award.

11 I accept the Appellant submission that her success on appeal would result in her not having to pay US$887,436.40 together with interest and the sum of US$118,165.25, and concomitantly, her success on appeal would result in the loss to the Respondent of the receipt of a substantial sum of money, and that issue is at the core of the award and must therefore be of significance to the paying and to the receiving party.

12 The Applicant has therefore satisfied me that the determination of the question will substantially affect the rights of one or more of the parties.

On the basis of the findings of fact in the award; (i) the decision of the tribunal on the question is obviously wrong, or (ii) the question is one of general public importance...