Following a rent review arbitration, the tenant of a property made a serious irregularity appeal under rule 69 of the Scottish Arbitration Rules and sought leave to bring an error of law appeal under rule 68.
In his judgement in the Outer House, Lord Woolman made clear that:
- Serious irregularity appeals should only be 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 will not intervene on the basis that it would have done things differently; and
- The appeal can only succeed if there has been substantial injustice (if the result of the arbitration would likely have been the same or similar there is no basis to overturn the award).
For the appeal on the grounds of error of law, the tenant relied on the same factors as for the serious irregularity appeal. However according to Lord Woolman “if something is an error of law, it cannot also be an irregularity”.
Lord Woolman then clarified the high threshold test for making a legal error appeal. Accordingly, the court must be satisfied:
- That the point will substantially affect a party’s rights;
- That the arbitrator was asked to decide the point; and
- That the arbitrator’s decision was obviously wrong in that it involved “something in the nature of a major intellectual aberration” or the point is open to serious doubt, where the court considers it to be of general importance.
Throughout the judgement it is made clear that English authority provides helpful guidance in setting out the approach of the Scottish Courts. During the court proceedings the parties sought, and were granted, anonymity under section 15 of the 2010 Act.
Andrew Mackenzie, chief executive of the Centre said:
“I welcome Lord Woolman’s decision which reaffirms the pro-arbitration approach of the Scottish Courts. The judgement also reiterates the Court’s approach with regard to the persuasiveness of English authority, which provides predictability and certainty to the Scottish arbitration regime. It is also important to note that during the court proceedings the parties sought, and were granted, anonymity thereby reaffirming the position of the Court with regards to anonymity.”