UK: English High Court Sets Aside Award For Failure To Properly Cross-Examine A Witness On A Core Issue And Basing Its Decision On Matters Not Properly Argued By The Parties

Last Updated: 19 August 2019
Article by Craig Tevendale, Nihal Joseph and Rebecca Warder
Most Read Contributor in UK, October 2019

In P v D [2019] EWHC 1277 (Comm), the English High Court set aside an arbitral award on the basis that the tribunal had reached a finding of fact on a core issue that had not properly been put to a witness in cross-examination and that the tribunal had based its decision on a case not properly argued by the parties. Under s68 of the Arbitration Act 1996 (the "Act"), the court has the power to set aside an award on grounds of serious irregularity. It is rare for the court to exercise this power – although that does not deter aggrieved parties from submitting applications to set aside. The judgment gives important guidance on the court's approach on this important procedural issue, and addresses considerations of fairness to witnesses in cross-examination, and to the parties putting those witnesses forward.


A company, "D", made loans to another company, "P", under a written agreement which had a 'no oral modification clause'. In the arbitration, D claimed that P was obliged to repay the loans under the agreement. P defended the case on the basis that its principal (Mr E) and D's principal (Mr D) had a meeting where they agreed orally to extend the day of repayment of the loan by two years from 1 January 2018 to 1 January 2020, which was subsequently confirmed orally in another meeting between Mr E, Mr D and others. P argued that there was an agreement or estoppel to this effect, and that the loan was therefore not due. D argued that no extension was ever agreed between Mr D and Mr E.

Mr E and Mr D submitted witness statements in the arbitration and were both cross-examined at the hearing. P alleged that D's counsel did not cross-examine Mr E on the subject of the meetings at which the agreement was alleged to have been reached.

The award

The tribunal considered the evidence of Mr D and Mr E and held that P had succeeded in showing there was an estoppel, but only until 1 January 2018. P had failed to show that the parties had agreed to an extension from 1 January 2018 to 1 January 2020 or that D was estopped from demanding repayment of the loan after 1 January 2018.

P made a request for clarification on this aspect of the tribunal's award. The tribunal's clarification noted that, in its view, there was a shared assumption between the parties that the extension would be agreed into a "wider package", but until all the elements of the wider package were agreed, that shared understanding would have no legal consequences and would not be binding.

Challenge to the award and the court's decision

The first ground: cross-examination of Mr E

P challenged the award on the basis of s68(2)(a) of the Act, arguing that the tribunal had breached their duty under s33 of the Act to act fairly and impartially as between the parties, and to give each party a reasonable opportunity of putting their case and dealing with that of their opponent. P argued that Mr E was not cross-examined by D's counsel regarding what was said at the meetings, and yet the tribunal found that there was no agreement or estoppel in relation to the matters discussed at the meeting. This was said to be contrary to the tribunal's duty under s33.

In their award, the tribunal noted that Mr E was not cross-examined at all on his version of events at the meetings. On the other hand, the tribunal found that Mr D was not a satisfactory witness; Mr D could not recall the meetings at all, and Mr D's lawyers had prepared his witness statement based upon documents in their possession. The Tribunal "focused on Mr E's evidence of the meeting", despite the decision by D's counsel not to put D's case regarding the meeting to Mr E.

P argued, relying on Browne v Dunn [1894] 6 R 57, that where there is a challenge to a witness on a core issue as to credibility, it ought to be put in cross-examination to that witness and if this is not done the party not challenging may be precluded from relying on its case on that point. The court found that the principle in Browne was applicable. While modern authorities recognised exceptions to the principle, those exceptions did not apply as the failure to cross-examine was in relation to a core issue. The court also noted that fairness to a witness required that if their evidence was to be disbelieved, they must be given a fair opportunity to deal with the allegation, particularly where serious imputations as to the witness's honesty and integrity were being made.

The second ground: tribunal's reasoning

P's second ground of challenge was that the tribunal based their decision on a case which had not been properly argued. As noted above, the tribunal had provided further clarification that it took the view that there was a common assumption that an extension would be agreed, but that this was contingent on agreeing the wider elements of the transaction. P argued, and the court agreed, that this was not a case that D had pursued in the arbitration. The court also noted that neither P nor its witness Mr E had the opportunity to address this argument.

The court found that there was a breach of the tribunal's duty under s33 in relation to both of these grounds.


The decision in P v D is a rare example of a successful challenge to an arbitral award. The case is instructive of the court's approach to due process and fairness as regards cross-examination. In international arbitration, tribunals are often guided by the IBA Rules on the Taking of Evidence in International Arbitration (the "IBA Rules"). The IBA Rules give the tribunal broad discretion regarding witness evidence, including allowing the parties not to require the appearance of a witness at a hearing. However, this decision is an important reminder that the court will consider whether fairness to the witness, or to the parties, demands that certain matters be put to a witness in cross-examination.

As the court acknowledged, the tribunal was left in a difficult position in this case. During Mr E's cross-examination, the chairman of the tribunal indicated to D's counsel that he had not put the core issue to Mr E; yet D's counsel nevertheless decided not to cross-examine Mr E on the issue. On the other hand, the evidence of Mr D was, in the judge's words, "poor to the extent of non-existent". The consequence was that a key issue in the case, and on which the tribunal based its award, was not put to Mr E. On one view the tribunal was left in a difficult position where, despite drawing the parties' attention to the matter, the core issue was not put to Mr E and it had to make its decision based on the evidence before it. However, the court's decision makes clear that where there has been a failure to put to a witness a key issue relating to their credibility, it would be unfair to allow a party who did not so cross-examine to rely on its case on that point. Where this leads to substantial injustice, the court may exercise its power to set aside the award.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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 Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions