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A v A (Arbitration: Guidance) [2021] EWHC 1889 (Fam)

Mostyn J dismissed a challenge to a financial provision arbitration award. He issued important guidance in an Appendix on the challenging and enforcement of such awards, with the approval of the President of the Family Division.

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The parties had been married for 39 years. They were both aged 63 Following separation they had agreed to arbitrate the financial provision matters arising from the breakdown of the marriage. They signed form ARB1 in February 2019. They issued petitions in July 2019. By agreement the decree nisi was granted on the husband's petition in March 2020. The decree was made absolute in November 2020.

The arbitration was to be heard in May 2020, but was adjourned to December 2020. The parties agreed many of the issues between them on 1 September 2020, which was incorporated into a working draft order. The arbitration therefore considered the remaining matters. The arbitrator handed down his 32 page decision ending with a summary of the award and declaration of what had been decided. The wife's advisers incorporated the award into the draft order and invited the husband to agree to submitting the order for approval by the FRC. The husband declined. He applied under s57 Arbitration Act 1996 for clarification and correction of the award. The arbitrator dismissed his application.

The wife applied in January 2021 to the Family Court (filing Form A and D11) for the husband to show cause why the draft order incorporating the award should not be made an order of the court.

The husband applied to the Business and Property Court under the 1996 Act. This was transferred to the Family Division.

The wife's application was transferred to the High Court so the application could be heard together as the Family Court had no jurisdiction under the 1996 Act.

Mostyn J described this as procedural chaos which prompted his Guidance. He held that the effect of Haley v Haley [2020] EWCA Civ 1369 was that challenges to such an arbitration award should be treated as if an appeal from a DJ to a Circuit Judge in the Family Court. The question was, is the award wrong. The approach required under Haley meant that the judge had analogous powers to those given to a circuit judge on an appeal from a district judge, including (for example) correcting calculation errors in an award. It also allowed the judge when allowing an appeal to vary other parts of the order without the need for a respondent to have appealed too.

In dismissing the grounds of challenge Mostyn J made the point that an award has to be read as a whole when seeking to establish whether was any error or omission. He deprecated "island hopping" approach where individual paragraphs are considered and not the whole. He similarly rejected the approach of seeking to establish error through narrow textual analysis of the award.

The Guidance needs to be read carefully, but the following are key points:


1. Whether the application is by P challenging the award or D seeking to enforce the  award, there must be a Form A filed with the court. The application will be on form D11 and the Guidance specifies the additional documents to accompany the D11 (skeleton arguments, draft orders etc.)

2. There is no need to make an application under s68 or s69 Arbitration Act 1996.

3. There is no need for a MIAM.

4. The application will be placed before a Circuit Judge who deals with financial remedies who triage it. That judge will consider if any challenge to the award would be granted leave if it was appeal from s District Judge. If yes, then the case will be listed, and directions given for a hearing. If no, then the application will be dismissed, and costs dealt with on the papers.

5. Any request for allocation to a High Court Judge sitting as a judge of the Family Court will be considered by Mostyn J or the FDLJ for the circuit.

6. A model draft order for use in these applications is appended to the Guidance. It will be added as Order 6.5 to the Compendium.

7. Costs will normally follow the event. The general rule of no order as to costs under FPR 28.3(5) will not apply.

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII