UK: Court of Appeal Reaffirms Restrictive Scope of Serious Irregularity as a Ground to Set Aside an Award

Last Updated: 11 June 2003

The Court of Appeal in England had to consider in its decision of Checkpoint Ltd v Strathclyde Pension Fund [2003] All ER (D) 56 whether an arbitrator’s use of personal knowledge amounted to serious irregularity pursuant to section 68 Arbitration Act 1996. The defendant, a landlord, had leased property to the claimant tenant under a lease which provided for upwards only rent reviews. The lease further provided that if the parties could not agree upon the open market rent, the rent was to be determined by an independent surveyor who was to "act as an arbitrator under the provisions of the Arbitration Acts."


The parties were unable to agree on the open market rent and a surveyor was appointed as arbitrator. The arbitrator considered initial and supplemental written representations from surveyors appointed by each side regarding what they considered to be comparable properties for the purpose of establishing the open market rent. The arbitrator visited each of the properties put forward as comparable but, in making his award, the arbitrator accepted submissions made by the landlord’s surveyor regarding comparable rents. In respect of one of the areas, the "Winnerish Triangle", which the landlord’s surveyor put forward as comparable, the arbitrator confirmed that he had been "… involved with Winnerish Triangle for some years including the period within which these two lettings were achieved." He rejected the contention put forward by the tenant’s surveyor that there was no demand for high office content buildings in Bracknell, stating that his own experience in the market at Winnerish Triangle did not support that contention.

The tenant challenged the arbitrator’s award under Section 68 of the English Arbitration Act 1996 on the basis that there was a serious irregularity in that the arbitrator had relied upon his own experience of Winnerish Triangle without giving the tenant the opportunity to deal with that in evidence. Furthermore the arbitrator had failed to deal with an important part of the tenant’s evidence regarding the oversupply of and poor demand for comparable premises in the immediate locality. Mr Justice Park in the High Court did not agree with these contentions and upheld the award.

Court of Appeal

The tenant appealed the judge’s conclusions. Ward LJ, for the Court of Appeal, considered the submissions made by each side. He noted that the tenant relied on Fox v Wellfair Limited [1981] Lloyd’s Rep 514 to claim that an arbitrator may use his personal knowledge to evaluate the evidence and submissions before him but not to supplement or supplant that evidence. The tenant challenged the award on the grounds of lack of fairness as it had not been given the opportunity by the tribunal to comment or rebut some of the evidence taken into account. By contrast, the landlord relied on clause 15.2 of the lease, which required the arbitrator "to have relevant local knowledge", so that, when drawing on his local knowledge, the arbitrator was simply doing what was required of him.

No serious irregularity

Ward LJ noted that the question of whether an arbitrator’s use of personal knowledge constituted a procedural irregularity was difficult to determine. "The easy answer is when a right minded observer would conclude that the information ought to be disclosed to the affected parties" to give them the opportunity to comment on it. This does not provide any practical guidance, as what fairness requires in a particular case is "essentially an intuitive judgment."1

The Court reformulated the question to whether the information on which the arbitrator relied was information of the kind and within the range of knowledge one would reasonably expect the arbitrator to have if, as required by the terms of the lease, he was to be experienced in the letting/valuation of property of a similar nature, situated in the same region and used for similar purposes. If he uses knowledge of that kind, he acts fairly; if he draws on knowledge outside that field, then he does not.

The Court of Appeal also dismissed the claim, pursuant to Section 68(2)(c) Arbitration Act 1996, that the arbitrator had failed to conduct the proceedings in accordance with the agreed procedure. Proceedings can be conducted in either an adversarial or inquisitorial manner. They are inquisitorial when enquiry is made into issues deemed relevant, even if not raised by the parties, when the arbitrator investigates the dispute himself and seeks out evidence relating to it. Here, however, the arbitrator did not stray outside the issues between the parties nor make any independent enquiries.

The Court finally dismissed the substantive ground raised in Section 68(2)(d) Arbitration Act 1996, requiring that the tribunal deal with all the issues that were put to it. Ward LJ said the words must be construed purposively. It had never been part of the judicial or arbitral function that each and every point in dispute must be considered. There was no duty on a judge, in giving his reasons, to deal with every argument presented by counsel and that "a judge should give his reasons in sufficient detail … They need not be elaborate." The tribunal had done so in its award.

Substantial injustice

Although the Court did not find any serious irregularity in this case it briefly considered the arguments put forward on the second criterion whether or not the irregularity had caused substantial injustice to the tenant. The tenant had argued that a doubling of the rent could not be justified in view of the market. All of these submissions were rejected by the Court of Appeal as being too hypothetical. It was not for the Court to make its own assessment of what the rental figure should be and compare this to what was awarded by the arbitrator. The Court reiterated that Clause 68 is 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 for it to be corrected." The Court of Appeal confirmed that Section 68 was not a soft option clause as an alternative to a failed application for leave to appeal. This decision clearly shows that the English courts will not intervene in an arbitral award save in the most extreme circumstances. The fact that the tenant was surprised that the rent was doubled and the landlord’s experts’ figure accepted without any reductions did not of itself substantiate a claim for serious procedural irregularity let alone that a substantial injustice had been caused.

Article by Gearoid Carey


1 Lord Mustill, Reg v Secretary of State for the Home Department, Ex Parte Doody [1994] L AC 531, 560

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.