Commercial Court: evidence admissible on appeal on point of law | Practical Law

Commercial Court: evidence admissible on appeal on point of law | Practical Law

In Dolphin Tanker SrL v Westport Petroleum Inc [2010] EWHC 2617 (Comm), the Commercial Court has confirmed the scope and nature of evidence admissible on an appeal under section 69 of the Arbitration Act 1996.

Commercial Court: evidence admissible on appeal on point of law

Practical Law UK Legal Update Case Report 8-503-7141 (Approx. 3 pages)

Commercial Court: evidence admissible on appeal on point of law

by PLC Arbitration
Published on 26 Oct 2010 • England, Wales
In Dolphin Tanker SrL v Westport Petroleum Inc [2010] EWHC 2617 (Comm), the Commercial Court has confirmed the scope and nature of evidence admissible on an appeal under section 69 of the Arbitration Act 1996.
The Commercial Court has rejected a submission that the scope of evidence admissible on an appeal under section 69 of the Arbitration Act 1996 had been broadened by recent authority, or by recent revisions to Practice Direction (PD) 62 (see Legal update, Procedure for applying for permission to appeal against an award changing from 1 October 2010). Simon J confirmed the general rule that only the award and the relevant contract were admissible. The extraneous evidence adduced by the applicant (including expert evidence showing the commercial background to the contract) was excluded.
Simon J considered the authorities and summarised the relevant principles as follows:
  • There has been no relaxation of the general rule that only the award and the relevant contract are admissible. This rule is not affected by the recently revised PD 62 (which allows a party to put before the court "any document (such as the contract or the relevant parts thereof) which is referred to in the award and which the court needs to read to determine a question of law").
  • There is a limited exception to the general rule where the award has set out the relevant contractual terms in abbreviated form, or has summarised the effect of an identified contractual exchange, or has identified documents as having contractual effect, without setting out their terms. In such cases, the documents referred to or summarised are admissible because they are highly relevant to the identified question of law. The court "needs" to see the documents (for the purposes of PD 62) because it cannot carry out its appellate function without them.
  • An appeal on a question of law is confined to the facts found by the award.
  • Although all contracts must be construed against their commercial background, the only admissible findings in relation to that commercial background are those in the award.
The judgment is helpful in clarifying that the recent revisions to PD 62 have not affected the general rule about admissibility. Furthermore, the judgment clarifies the narrow scope of the exception to that general rule, which applies only where contractual documents are referred to or summarised in the award, and the court needs to see the documents themselves to deal properly with the appeal.
Case: Dolphin Tanker Srl v Westport Petroleum Inc [2010] EWHC 2617 (Comm) (21 October 2010).