English Court of Appeal Confirms Scope of Its Power to Grant Permission to Appeal Certain First Instance Decisions

In an important decision relating to the procedure for appealing first instance decisions under Section 68 (and certain other provisions) of the Arbitration Act 1996 (the “Act”), the Court of Appeal has ruled that it (i.e., the appellate court) has no jurisdiction to grant permission to appeal where the Act limits jurisdiction to the first instance judge, save in “exceptional circumstances.” 

In this Legal Update, we analyse the judgment of Lord Justice Foxton in the Court of Appeal, with which Lord Justice Phillips agreed, which provides useful guidance for parties contemplating appeals to certain first instance decisions.

The Court of Appeal Application

The Applicant in this case sought permission to appeal directly from the Court of Appeal, following (i) the High Court’s refusal to give the Applicant permission to bring an “out of time” challenge to an arbitral award under Section 68(2)(g) of the Act, on the basis that Section 68(2)(g) was not engaged; and (ii) the High Court’s subsequent refusal to grant the Applicant permission to appeal that refusal.

Following an oral hearing on 5 March 2026, the Court of Appeal ruled that it lacked jurisdiction to grant permission to appeal.

The Applicant’s Arguments

In the Court of Appeal, the Applicant was invited to explain why its application for permission to appeal was not barred, given that:

1. Section 68(4) states that: “The leave of the court is required for any appeal from a decision of the court under this Section;” and
2. The relevant court for the purposes of Section 68(4), in this case the High Court, had not granted leave to appeal.

The Applicant put forward two explanations:

1. The limitation at Section 68(4) did not apply because the High Court decision was not a “decision of the court” under Section 68. The Applicant’s principal argument was that the decision was jurisdictional in nature and not a decision on the merits of the s.68 application; and
2. The terms of a consent order between the parties, approved by the High Court, gave the Applicant the right to seek permission from the Court of Appeal directly.

Court of Appeal Decision

Lord Justice Phillips and Lord Justice Foxton dismissed both arguments, holding that on the facts of the case, the Court of Appeal had no jurisdiction to grant permission to appeal. The Lord Justices’ findings in response to each explanation may be summarised as follows.

A. Applicability of Section 68(4)

The Act contains 17 provisions which state that permission to appeal is confined to the first instance judge; these include Section 68(4), as well as other Sections relevant to challenges under, for example, Section 67(4) and Sections 69(6) and 69(8). 

The Court of Appeal held that these limitations reflect the policy of finality enshrined in the Act, and the legislature’s intention to avoid the “delay and expense” of an additional layer of permission to the Court of Appeal while leaving the status of an award “in limbo” until its appeal application had been determined.

The Lord Justices held that on the facts of the case, the Applicant did not fall within the “very limited exceptions” to Section 68(4) pursuant to which the Court of Appeal would have jurisdiction to grant permission to appeal.

Notably, the Lord Justices held that the case did not fall within the categories of exception evidenced by:

1. A 2005 authority in which an order rendered under Section 44(3) was held to be outside the court’s powers under that provision, such that the resulting appeal could not be said to be an appeal from a decision under Section 44; and
2. Sumukan v Commonwealth Secretariat [2007], in which a judgment as to whether there was an agreement to contract out of Section 69 of the Act was held to be a finding on a “preliminary question”, and not a substantive decision under Section 69(1), such that the resulting appeal could not be said to be an appeal from a decision under Section 69.

Crucially, the Court of Appeal treated the High Court’s decision as a decision under Section 68, despite the fact that the Applicant’s appeal did not make any finding under Section 68(2), but rather as to the scope of Section 68(2).

B. Consent Order

The Court of Appeal also rejected the Applicant’s argument arising out of the consent order agreed between the parties and approved by the Judge in the High Court, holding that the statutory limitation at Section 68(4) – which stemmed from the policy of the Act – cannot be overridden by a consent order.

The Lord Justices commented that:

1. The parties themselves cannot agree to grant the requisite jurisdiction on the Court of Appeal since Section 68 is a mandatory provision of the Act;
2. The wording of the consent order (which was the standard wording “generally adopted when a judgment is handed down prior to the hearing at which an application will be made to the trial judge for permission to appeal, and the parties wish to avoid time running for the renewal of any such application to the Court of Appeal from the date of the hand-down”) did not specifically address a party’s right to seek permission; and
3. There was no suggestion that the first instance judge was being asked to make an order varying Section 68(4).

Case Comment

This judgment provides clarity on the English Court of Appeal’s current procedural expectations when it comes to appealing decisions stated in the Act as falling only within the jurisdiction of the lower court.

Given the wording of the decision, the outcome appears to be largely driven by policy considerations. The court wants to avoid the “wider consequences” that it says would ensue if the Appellant succeeded in its Section 68(4) argument, namely the potential for a flood of direct permission requests to the Court of Appeal under Section 68, and potentially other provisions of the Act which limit the right to seek permission to appeal.

To that end, it must be noted that the decision needs to be understood against the backdrop of:

• An increasing number of Section 68 applications (and arbitration claims in general) in the English Commercial Court in recent years; and
• The Judiciary’s drive to (i) ensure arbitration cases are dealt with as promptly and efficiently as possible (as per the London Circuit Commercial Court - Practice Note on arbitration claims), and (ii) deter speculative challenges (as shown by the changes to the Commercial Court Guide implemented in February 2022).

Should you wish to discuss the impact of this decision on your business or your disputes strategy, please contact any of the authors or your usual Mayer Brown contact.