First, the new evidence that the Claimant was acting as an undisclosed agent for the Claimant’s Nominee (and therefore that the Claimant’s Nominee was the true owner of the Property) was directly inconsistent with the case put before the Beth Din regarding the contracting party to the Heskem and the person to whom ownership of the Property was to be transferred. Second, the new evidence that the Claimant had been claiming and receiving housing benefit for the Property (on the purported basis that he was paying rent, when he was actually the owner of the Property) meant that Hackney BC may have a claim against the Claimant for an unlawful housing benefit scheme. If the Court were to order the transfer of the Property in these circumstances, it might prejudice an interested third party since Hackney BC would have no recourse against the Property as security for any potential claim. For these reasons, the Court stated that an order enforcing the Award would not be in the interests of justice, it could be contrary to public policy, and it could damage the integrity (and reputation) of the Beth Din system. Accordingly, the Court declined to make the order sought and suggested that the parties ask the Beth Din to reopen their Award on the ground that new factual evidence had arisen. Comment This rare example of the English Courts not enforcing an unchallenged arbitral award demonstrates that section 66 of the Act is never a rubber-stamping exercise. The Court has discretion under this provision and will consider the interests of justice before enforcing an award, particularly where the arbitral award is a specific performance order relating to land. This case also demonstrates that the qualification contained in section 48 of the Act, allowing the parties to determine the powers of the tribunal by agreement, can be engaged where the parties choose a different procedural law to English law without requiring a specific agreement on particular tribunal powers. Since section 48 is a non-mandatory provision of the Act, it can be disapplied, or superceded, if the parties’ agreement grants different or greater powers such as through the choice of a procedural law which grants powers
About the Authors
Nicholas Peacock Partner, London
Vanessa Naish Professional support consultant
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