UPDATED: P&ID loses bids to upturn Court docket judgement favouring Nigeria

An English Court docket of Attraction has rejected a transfer by Process and Industrial Development (P&ID), an organization owned by two Cayman Island-based entities, to put aside a earlier judgement reversing the corporate’s $11 billion damages declare in opposition to Nigeria.

Lord Justice Snowden, a justice of the Excessive Court docket of Justice of England and Wales and the lead choose within the swimsuit,
famous that the choice of a British excessive court docket on the matter final December stands.

The decision was delivered unanimously with different judges corresponding to Lord Justice Snowden and Sir Julian Flaux.

P&ID was additionally difficult the choice of Robin Knowles, the choose who dismissed the damages declare, to disclaim it permission to attraction the earlier judgement.

In a single voice, the three judges granted P&ID’s prayer for permission to attraction and promptly dismissed it, based on a replica of the Friday ruling, seen by PREMIUM TIMES.

“I’d subsequently grant P&ID permission to attraction, however would dismiss the attraction,” Mr Snowden stated whereas studying the choice he reached along with his two different colleagues.

Succinctly put, the attraction dismissed by the court docket was P&ID’s bid to reject the ruling releasing Nigeria from paying the corporate the damages.

The court docket additionally rejected the prayer of the corporate, requesting it to put aside a ruling by the decrease court docket concerning the foreign money by which the cost of the authorized prices Nigeria incurred within the case.

P&ID’s rivalry was whether or not Robin Knowles, the choose who requested the corporate to pay Nigeria £43 million as authorized charges and disbursements when the choice was made seven months in the past, was so as in declaring that the cost be made in kilos sterling.

Background

Late final 12 months, Nigeria obtained a breakthrough after greater than ten years of a ‘breach of contract’ dispute with P&ID, initially arrange by two Irish residents and registered within the British Virgin Islands, over a failed deal to assemble a gasoline plant within the nation.

The London Court docket of Worldwide Arbitration awarded $6.6 billion to the PI&D in 2017, saying Nigeria didn’t fulfil its contractual obligations.

The sum rocketed to $11 billion over six years after curiosity was factored in, placing Nigeria liable to setting apart one-third of its exterior overseas change reserves to settle the debt if the decision reached final December had gone in opposition to the nation.

Nigeria gained the bid to upturn the arbitration award after its legal professionals established that the method by which P&ID obtained the contract had been tainted by bribery, arguing that the corporate supposed to make use of litigation to generate profits out of the scenario.

Nigeria’s authorized group affirmed that the contract to PI&D was a product of graft and claimed that the corporate greased the palm of the officers of the nation’s petroleum ministry to win the development contract in 2010.

They went forward to say that P&ID bribed the nation’s legal professionals in the midst of proceedings to acquire paperwork that have been deemed confidential.

P&ID, based by Irishmen Michael Quinn and Brendan Cahill, had been pursuing the declare since 2012.

Robin Knowles, the choose who delivered the ruling overturning the award to P&ID, famous that P&ID and its legal professionals have been “pushed by greed and ready to make use of corruption; giving no thought to what their enrichment would imply when it comes to hurt for others.”

READ ALSO: P&ID: Nigeria begins bid to overturn $11bn judgement debt

Authorized prices cost gimmick

P&ID claimed that though the £43 million cost by Nigeria to its legal professionals was made in kilos, the supply of such settlements is normally the nation’s consolidated income fund, which is denominated in naira.

For that cause, P&ID stated it should reimburse the nation for the authorized prices it incurred within the naira equal of £43 million.

“As indicated by Males LJ in NIOC at [60], one of many intentions behind the limitation in part 67(4) and equal provisions of the Arbitration Act, and the overall coverage of non-intervention of the courts within the arbitral course of (see part 1(c) of the Arbitration Act), is that appeals in arbitration circumstances ought to typically be restricted to some essential level of precept,” Mr Snowden stated.

“To the extent that this represents a further issue within the choice whether or not to grant permission to attraction, I additionally contemplate that the purpose on the foreign money of the Prices Order is of ample common significance to fulfill that requirement,” he added.

The court docket based mostly its choice on the evaluation of Justice Kimbell QC in a case titled “Cathay Pacific” in allowing P&ID to attraction.

“In Cathay Pacific, the solicitors for the profitable defendant had accounted for his or her time and had invoiced their consumer (a German firm), in euros. The deputy choose was requested to evaluate these prices summarily and to make an order for cost of the resultant quantity in euros. The paying social gathering objected that the court docket may solely make an order for cost of prices in sterling,” he stated.

“P&ID asserts that cost of such charges and disbursements on the related instances would have value Nigeria a complete of about 23 billion naira; but when P&ID is required to pay £43 million in prices now, that might be exchanged by Nigeria on the present fee to about 76 billion naira,” the doc acknowledged.

On account of change fee volatility, the sum surged by greater than thrice between December and now when transformed into naira.

Permitting P&ID to refund the cash in naira would have made the cost basically decrease than £43 million.

“In my judgment, subsequently, the Choose was proper to just accept Nigeria’s simple submission that as a result of Nigeria had been invoiced and had incurred its legal responsibility to its solicitors in sterling, and had paid these payments in sterling, the court docket should make its Prices Order in sterling,” Mr Snowden stated.

READ THE FULL JUDGMENT BELOW

Impartial Quotation Quantity: [2024] EWCA Civ 790
Case No: CA-2023-002515
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Mr. Justice Robin Knowles CBE
Judgment given on 8 December 2023

Royal Courts of Justice
Strand, London, WC2A 2LL
12 July 2024
B e f o r e :

SIR JULIAN FLAUX, CHANCELLOR OF THE HIGH COURT
LORD JUSTICE SNOWDEN
and
LORD JUSTICE FRASER
____________________

Between:
PROCESS & INDUSTRIAL DEVELOPMENTS LIMITED
(a BVI company)
Defendant/Appellant
– and –

THE FEDERAL REPUBLIC OF NIGERIA
Claimant/ Respondent
____________________

Alexander Milner KC and Henry Hoskins (instructed by Quinn Emanuel Urquhart & Sullivan UK LLP) for the Appellant
Mark Howard KC and Tom Ford (instructed by Mishcon de Reya LLP) for the Respondent

Listening to date : 30 April 2024
____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

This judgment was handed down remotely at 10.30am on 12 July 2024 by circulation to the events or their representatives by e-mail and by launch to the Nationwide Archives.
………………………..
Lord Justice Snowden :

It is a rolled-up software for permission to attraction, with attraction to comply with if permission is granted, in opposition to the choice of Mr. Justice Robin Knowles CBE (the “Choose”), in relation to the foreign money by which an order for prices (the “Prices Order”) was made, in opposition to which the Choose refused permission to attraction.
The Prices Order and refusal of permission to attraction have been made on the conclusion of a profitable software by the Federal Republic of Nigeria (“Nigeria”) beneath part 68 of the Arbitration Act 1996 (“part 68” and the “Arbitration Act”) to put aside two arbitration awards (the “Awards”) in favour of Course of & Industrial Developments Restricted (“P&ID”).
There are two points earlier than this Court docket. The primary subject is whether or not part 68(4) of the Arbitration Act deprives this Court docket of jurisdiction to listen to P&ID’s attraction. Part 68(4) offers,
“The go away of the court docket is required for any attraction from a call of the court docket beneath this part.”
The second subject (which is barely reached if this Court docket has jurisdiction and grants permission to attraction) is whether or not the Choose was proper to order P&ID to pay Nigeria’s prices in sterling. Though Nigeria was billed by its English legal professionals in sterling, and paid them in sterling, P&ID contends that Nigeria funded such funds by exchanging naira from its consolidated income fund, in order that the Prices Order ought to have been in naira.
The problem is of some monetary consequence, as a result of the naira depreciated considerably in opposition to sterling within the interval between Nigeria’s funds to its legal professionals and the making of the Prices Order. Nigeria’s authorized charges and disbursements are stated to have amounted to round £43 million. P&ID asserts that cost of such charges and disbursements on the related instances would have value Nigeria a complete of about 23 billion naira; but when P&ID is required to pay £43 million in prices now, that might be exchanged by Nigeria on the present fee to about 76 billion naira.
The background

The Choose’s Prices Order was made throughout a listening to on 8 December 2023 coping with quite a few consequential issues following his earlier substantive judgment on Nigeria’s software pursuant to part 68: see [2023] EWHC 2638 (Comm) (the “part 68 Judgment”).
Within the part 68 Judgment, the Choose determined to put aside the 2 Awards that had been made in favour of P&ID in 2016 and 2017 by an arbitral tribunal comprising Lord Hoffmann, Sir Anthony Evans and Chief Bayo Ojo SAN. The Awards have been for damages for repudiatory breach of a contract for the development of a gasoline processing facility in Nigeria, and have been for a complete of US$6.6 billion. The Choose discovered that the Awards had been obtained by fraud or procured in a manner that was opposite to public coverage inside the which means of part 68(2)(g). The precise findings by the Choose have been that there had been bribery of a authorized adviser on the Nigerian ministry that had awarded the contract to P&ID; that there was a failure to reveal the bribery within the arbitration that amounted to perjury; and that P&ID had been supplied with a big variety of Nigeria’s confidential inner and privileged paperwork throughout the arbitration.
On the consequentials listening to, the Choose gave a ruling ordering P&ID to pay Nigeria’s prices of and occasioned by the proceedings beneath part 68 to be assessed on the usual foundation if not agreed. The Choose then heard argument on the foreign money by which such prices must be paid.
Nigeria’s argument was easy. It contended that it had instructed English solicitors in relation to litigation in England, had been invoiced by them in sterling, and had paid the payments in sterling. It subsequently contended that in accordance with the indemnity precept, the order for cost of its prices must be in sterling.
In opposition, P&ID contended that the aim of an award of prices was to compensate Nigeria for its losses sustained by cause of paying the prices of the proceedings beneath part 68. It relied upon the evaluation of John Kimbell QC (sitting as a Deputy Excessive Court docket Choose) in Cathay Pacific Airways v Lufthansa [2019] EWHC 715 (Ch) (“Cathay Pacific”) and contended that Nigeria had in actuality suffered such losses in naira as a result of it might be presumed to have taken naira from its central authorities funds and transformed the naira into sterling to fund the cost of its legal professionals’ payments.
In that regard, P&ID relied upon a letter dated 23 November 2023 from Nigeria’s solicitors that acknowledged,
“…Our consumer has paid invoices referring to its prices in these proceedings regularly because the outset of the proceedings. Because the Federal Republic of Nigeria, it’s self-evident that our consumer primarily transacts in Naira (and, certainly, we perceive it has usually exchanged Naira for Sterling on the overseas change market to discharge prices liabilities in relation to those proceedings) …”
As well as, P&ID’s skeleton argument earlier than the Choose asserted that,

“Nigeria’s Nationwide Meeting approves its funds and appropriates funds in Naira, and Article 80 of Nigeria’s Structure requires that “all revenues or different moneys raised or obtained by the Federation… shall be paid into and type one Consolidated Income Fund of the Federation”. It must be inferred that it’s from this Consolidated Income Fund, denominated in Naira, that Nigeria will need to have paid its prices, and that any prices award it receives will likewise be paid again into this identical fund.”
Nigeria’s counsel didn’t contest these assertions.

In his ruling on the foreign money level, the Choose referred briefly to the court docket’s common discretion in relation to prices beneath CPR 44.2 after which acknowledged,
“4. I’ve had the benefit of argument from Mr. Milner KC for P&ID, which presses for an method that will deal with prices in the identical manner as damages could be handled or an indemnity granted by a contract. On one view of the case of Cathay Pacific, the realized deputy choose discovered some extent of comparability between the prices jurisdiction and discretion, and the method the place there’s an indemnity in a contract. I’m not capable of settle for that that parallel is sound for current functions. The phrase “indemnity” options within the phrase “indemnity precept” when one is coping with prices, however its goal there’s to explain the target of stopping a profitable social gathering recovering a sum in extra of their legal responsibility to their very own solicitor.
5. Within the current case, if prices had been incurred in naira, then this court docket within the train of its discretion might need discovered extra that favoured the argument addressed by P&ID. However within the train of this court docket’s discretion, the brief and neatly expressed proposition from Mr. Ford for Nigeria prevails.”
The Choose additionally gave additional rulings on the relevant charges of curiosity and the quantity of an interim cost on account of prices (£20 million).

The Choose then heard argument on the query of permission to attraction in opposition to the order setting apart the Awards beneath part 68. He reserved judgment, reflecting the truth that it was widespread floor that if he refused permission, part 68(4) would forestall any attraction being heard. In a subsequent written ruling given on 21 December 2023, the Choose refused permission to attraction.
On the listening to on 8 December 2023, Mr. Milner KC then utilized for permission to attraction in opposition to the Choose’s order that the prices ordered must be paid in sterling, submitting that this was a discrete level of regulation. The Choose acknowledged,
“Attractively put, if I’ll say, and thanks for the concision. I’m going to determine now to refuse you permission to attraction on that time. So you’ve gotten that final result.”
In response, Mr. Milner indicated that he anticipated being instructed to hunt permission to attraction to this Court docket, and requested for a keep of the order for an interim cost on account. The Choose refused that software for a keep after which added,
“I don’t know if there’s something to consider, whether or not part 68(4) impacts the prices level for attraction functions, however you possibly can take into consideration that and take the course you’re minded to take.”
P&ID subsequently sought permission to attraction from this Court docket in opposition to the foreign money of the Prices Order. In its assertion of objection to the grant of permission beneath paragraph 19 of CPR Observe Route 52C, Nigeria contended that part 68(4) disadvantaged this Court docket of any jurisdiction to listen to such an attraction. Accordingly, Males LJ directed that the applying for permission to attraction must be heard on a “rolled-up” foundation with the attraction to comply with if permission was granted. Males LJ additionally granted a restricted keep of the order for an interim cost on phrases.
Part 68

The Arbitration Act offers three grounds upon which an arbitral award could also be challenged. They’re part 67 (substantive jurisdiction), part 68 (severe irregularity) and part 69 (attraction on level of regulation).
Part 68 offers in materials half,
“(1) A celebration to arbitral proceedings could (upon discover to the opposite events and to the tribunal) apply to the court docket difficult an award within the proceedings on the bottom of great irregularity affecting the tribunal, the proceedings or the award. A celebration could lose the suitable to object (see part 73) and the suitable to use is topic to the restrictions in part 70(2) and (3).
(2) Severe irregularity means an irregularity of a number of of the next varieties which the court docket considers has prompted or will trigger substantial injustice to the applicant –
…
(g) the award being obtained by fraud or the award or the best way by which it was procured being opposite to public coverage;
(3) If there’s proven to be severe irregularity affecting the tribunal, the proceedings or the award, the court docket could –
(a) remit the award to the tribunal, in entire or partially, for reconsideration,
(b) set the award apart in entire or partially, or
(c) declare the award to be of no impact, in entire or partially.
The court docket shall not train its energy to put aside or to declare an award to be of no impact, in entire or partially, except it’s happy that it will be inappropriate to remit the issues in query to the tribunal for reconsideration.
(4) The go away of the court docket is required for any attraction from a call of the court docket beneath this part.”
It’s common floor that “the court docket” in part 68(4) means the primary occasion court docket listening to the applying difficult the arbitral award and never an appellate court docket.
The primary subject for dedication within the immediate case is subsequently whether or not the Choose’s choice to make the Prices Order in sterling reasonably than naira was “a call of the court docket beneath this part” for the needs of part 68(4).
Current Authorities

The which means of part 68(4) and the identically worded part 67(4) has been explored in three comparatively current choices of this Court docket. These circumstances are Manchester Metropolis FC v Soccer Affiliation Premier League [2021] EWCA Civ 1110 (“Manchester Metropolis”); Nationwide Iranian Oil Firm v Crescent Petroleum Firm Worldwide [2023] EWCA Civ 826 (“NIOC”); and Czech Republic v Diag Human [2023] EWCA Civ 1518 (“Diag Human”).
In Manchester Metropolis, the FA Premier League had commenced arbitration proceedings in opposition to the well-known skilled soccer membership to acquire sure info and paperwork stated to be related to an investigation into the membership’s compliance with UEFA’s monetary honest play laws. The tribunal held that it had substantive jurisdiction to listen to the proceedings and a problem to that call by the membership beneath sections 67 and 68 of the Arbitration Act was dismissed by the Industrial Court docket following a listening to in non-public. The Industrial Court docket choose then gave a subsequent judgment by which she determined to publish her judgment dismissing the membership’s problem beneath sections 67 and 68. She refused permission to attraction that publication choice.
The Court docket of Attraction (Sir Geoffrey Vos MR, Sir Julian Flaux C and Males LJ) held the choose’s publication choice didn’t fall inside sections 67(4) or 68(4) in order that her refusal to present permission to attraction didn’t forestall an attraction being heard by the Court docket of Attraction. In explaining that call, Sir Julian Flaux C (with whom the opposite members of the Court docket agreed) acknowledged, at [39]-[40],
“39. Quotation of [certain] circumstances provoked a debate between counsel and the court docket as to the place the road was to be drawn between choices which might be caught by the limitation on the suitable of attraction within the related part of the 1996 Act and choices which might not. Males LJ posited the instance of a case administration choice about how a bit 68 software must be handled. As I stated on the time, that will appear to be an instance of one thing which is a part of the method of reaching a call beneath part 68, so can be caught by the limitation on the suitable of attraction. Sir Geoffrey Vos MR instructed to Lord Pannick [counsel for the club] {that a} consequential choice on a bit 68 software, for instance as to prices, would even be caught by the limitation.
40. Lord Pannick made it clear that he was not inviting this court docket to put down any common ideas relevant in each case, however solely to find out that this court docket had jurisdiction to listen to the attraction from the publication judgment. I agree that it isn’t vital for current functions to find out the tougher query whether or not case administration choices both facet of the substantive choice beneath, say, part 67 or 68, for instance as to how a listening to is to be performed or as to prices, can be caught by the limitation in subsection (4) of every part. While such case administration choices could also be stated to be a part of the method of reaching the substantive choice, the query whether or not the substantive choice must be revealed is a definite query separate from the choice itself. Within the current case, the choose’s choice that the deserves judgment and the publication judgment must be revealed was an software of widespread regulation ideas as set out within the choice of this court docket in Division of Financial Coverage and Growth of the Metropolis of Moscow v Bankers Belief Co [2005] QB 207. It was not a call of the court docket beneath sections 24, 67 or 68 and was, subsequently, not caught by the limitation on the suitable of attraction. In these circumstances, I’m happy that this court docket has jurisdiction to listen to this attraction …”
NIOC involved a call by the Industrial Court docket {that a} social gathering had not, by cause of part 73 of the Arbitration Act, misplaced the suitable to object beneath part 67 that an arbitral tribunal had exceeded its substantive jurisdiction. The Industrial Court docket refused permission to attraction that call. The Court docket of Attraction (Males LJ, Nugee LJ and Falk LJ) held that the choice that the suitable to object beneath part 67 had not been misplaced was “a call of the court docket beneath [section 67]” for the needs of part 67(4) and therefore couldn’t be appealed with out the permission of the Industrial Court docket.
At [60]-[63], Males LJ (with whom the opposite members of the Court docket agreed) acknowledged quite a few ideas which he derived from earlier authorities, together with Manchester Metropolis,
“60. First, the coverage underlying part 67(4) and different equal provisions has constantly been acknowledged as being to keep away from delay and expense. Clearly this isn’t achieved by excluding appeals altogether, however by making the primary occasion court docket the only real gatekeeper to regulate whether or not permission to attraction must be given. Paragraph 74(iii) of the DAC Report, commenting on the equal provision in what turned part 12(6) of the Act, demonstrates that it was supposed that appeals ought to typically be restricted to “some essential query of precept”:
“Thirdly, now we have made any attraction from a call of the court docket beneath this Clause topic to the go away of that court docket. It appears to us that there must be this limitation, and that within the absence of some essential query of precept, go away shouldn’t typically be granted. We take the identical view in respect of the opposite circumstances within the Invoice the place we suggest that an attraction requires go away of the court docket.”
61. It’s price noting that the coverage set out in part 1 of the Act additionally consists of, along with the avoidance of pointless delay and expense, a coverage of non-intervention by the court docket within the arbitral course of besides as expressly supplied in Half I of the Act.
62. Second, there are statements which recommend {that a} choice which is “a part of the method” of reaching a closing choice on a problem to an award is a call “beneath” part 67 or 68, because the case could also be. Extra particularly, it was at the least assumed in Sumukan {that a} choice beneath part 73 was “inside the compass” of part 67 or part 68, and that the restrictions on attraction contained in part 67(4) and part 68(4) would subsequently apply.
63. Third, there is no such thing as a assist in these circumstances for the view that solely a call lastly disposing of a problem to an award is able to being a call beneath part 67 or part 68. Neither is any distinction drawn between a call {that a} social gathering has misplaced the suitable to object and a call that it has not completed so.
Males LJ then concluded, at [64]-[66],
“64. Whether or not a call {that a} social gathering has not misplaced the suitable to problem an award beneath part 73 is a call beneath part 67 or part 68 for the aim of part 67(4) and part 68(4) is a query of statutory interpretation. It should subsequently be approached having regard to the item of the 1996 Act. The ideas by which the Act should be interpreted are set out in part 1. They embody the avoidance of pointless delay and expense and the limitation of court docket intervention within the arbitral course of besides the place expressly supplied.
65. In my judgment it’s clear that part 73 is totally ancillary to sections 67 and 68. It has no relevance or software impartial of a problem to an award beneath one or each of these sections. A call whether or not a celebration has misplaced the suitable to problem an award is undoubtedly “a part of the method” for figuring out a problem beneath part 67 or part 68 and is “inside the compass” of these sections. It’s a preliminary query, however not a query going to the court docket’s jurisdiction, the reply to which determines whether or not the court docket wants to contemplate the deserves of the part 67 or part 68 problem. “Determination” is a broad time period and the dedication of a bit 73 subject is of course to be thought to be a call beneath part 67 or part 68 as a matter of language, whichever manner it goes. There isn’t a justification for saying that it’s a choice beneath part 67 or part 68 if the part 73 subject is set in favour of the award creditor (ASM Transport), however not if it goes in opposition to the award creditor.
66. Furthermore, it’s in accordance with the coverage of the Act, as constantly described within the case regulation, to interpret part 67(4) and part 68(4) as encompassing such a call. It might be paradoxical to interpret these provisions to imply that solely the primary occasion court docket can grant permission on the ultimate choice to uphold or dismiss the problem to an award, however that the Court docket of Attraction can provide permission on preliminary or case administration choices when the primary occasion court docket has refused such permission. Though it could be stated that the Court docket of Attraction might be trusted to not give permission in unmeritorious circumstances, and can be unlikely to take action on case administration choices, even the method of making use of for such permission would trigger delay and expense, whereas leaving the standing of the award in limbo till the applying had been decided. The truth that there are different provisions of the Act, corresponding to part 9 and sections 66 and 103, which can elevate broadly comparable points as to the scope of an arbitration clause as come up beneath part 67, however which include no equal restriction on the grant of permission to attraction, is nothing to the purpose.”
Diag Human involved an try to attraction a call of the Industrial Court docket dismissing an software for an order pursuant to part 70(7) of the Arbitration Act that cash payable beneath an arbitration award must be introduced into court docket pending dedication of a problem to the award beneath sections 67 and 68. The Industrial Court docket refused permission to attraction its choice. The Court docket of Attraction (Males LJ, myself and Falk LJ) held that the dismissal of the applying for an order beneath part 70(7) was “a call of the court docket beneath [sections 67 and 68]” for the needs of sections 67(4) and 68(4) and therefore couldn’t be appealed if the Industrial Court docket had refused permission.
The lead judgment was given by Males LJ (with whom I and Falk LJ agreed). At [32]-[33], Males LJ referred to the related passages in his earlier judgment in NIOC, and concluded, at [36]-[41],
“36. In my judgment solely the primary occasion court docket can provide go away to attraction from a call both to order or to not order safety beneath part 70(7)…
37. I settle for that the start line, as a matter of statutory interpretation, is that within the absence of clear phrases or vital implication there must be no restriction on no matter proper of attraction a celebration has beneath the overall regulation (see Inco Europe Ltd v First Selection Distribution [2000] 1 WLR 586, 590E-F, though the difficulty in that case was whether or not a proper of attraction had been excluded altogether; that’s totally different from the current subject, as there is no such thing as a doubt that the primary occasion court docket has jurisdiction to grant go away to attraction to this court docket). Nevertheless, for my part the place is obvious.
38. I contemplate that the reasoning in NIOC applies right here. Part 70 is ancillary or supplementary to an software beneath sections 67, 68 or 69, and has no software impartial of these sections. That’s spelled out by subsection (1), which states that the provisions of the part apply to an software or attraction beneath part 67, 68 or 69. It’s also made clear by the heading of the part (“Problem or attraction: supplementary provisions”). The phrases of the part totally justify that heading.
39. Deciding whether or not to order safety is a part of the method of figuring out a problem beneath part 67, 68 or 69. Such a call solely must be made if the award creditor makes an software for safety, however it’s equally true {that a} choice beneath part 73 whether or not a proper of problem to an award has been misplaced will solely have to be made if the award creditor argues that it has been.
40. Certainly, the phrases of part 70(7) present expressly that one final result of an software for safety is an order that if safety will not be supplied, the problem beneath part 67 or part 68, or the attraction beneath part 69, can be dismissed. That would be the typical sanction when safety is ordered. It’s the order which the applicant sought on this case. A call dismissing the problem to the award, albeit contingent on safety not being supplied as ordered, is a paradigm case of a call beneath part 67, 68 or 69.
41. This view is confirmed by the construction of the Act, with part 70 positioned within the group of sections which cope with the powers of the court docket in relation to an award, and by the coverage concerns which I described in NIOC.”
Does this Court docket have jurisdiction to listen to an attraction?

Making use of the method set out by Males LJ in NIOC and repeated in Diag Human, I settle for that the start line is that absent clear phrases, or vital implication, there must be no restriction on any proper of attraction {that a} social gathering has beneath the overall regulation.
I additionally settle for that the query of whether or not an attraction in opposition to the Choose’s choice on the foreign money of the Prices Order falls inside part 68(4) is a matter of statutory interpretation. This requires the court docket to establish the which means of the phrases utilized in part 68(4) in context, having regard to the aim and scheme of the Arbitration Act: see e.g. R (PACCAR Inc) v Competitors Attraction Tribunal [2023] UKSC 28 (“PACCAR”) at [40] et seq.
Making use of that method, there are a selection of things that time to a conclusion that the restriction in part 68(4) will not be meant to use to the Choose’s choice to make the Prices Order in sterling.
First, as defined in NIOC at [60], the coverage underlying part 67(4) and part 68(4) is to restrict the potential for appeals to trigger delay and expense within the decision of disputes which have been referred to arbitration.
The coverage of avoiding pointless delay and expense in arbitrations is clearly acknowledged in part 1 of the Arbitration Act, which offers,
“The provisions of this Half are based on the next ideas, and shall be construed accordingly – (a) the item of arbitration is to acquire the honest decision of disputes by an neutral tribunal with out pointless delay or expense…”
The applying of that coverage to appeals was confirmed by Waller LJ in Sumukan v Commonwealth Secretariat [2007] EWCA Civ 243, [2007] 3 All ER 342 at [15],
“15. … It was the intention of these drafting the 1996 Act to restrict appeals to the Court docket of Attraction to keep away from the delay and expense that such appeals may cause. Certainly the wording of the unique Invoice was altered to make the place completely clear (see the Departmental Advisory Committee Supplementary Report on the Arbitration Act 1996 (January 1997), p. 10 (para 27)). Moreover the philosophy is mirrored in part 1(a) of the 1996 Act which offers that “the item of arbitration is to acquire the honest decision of disputes by an neutral tribunal with out pointless delay and expense”…”
Within the particular context of challenges to an arbitral award, it’s comparatively straightforward to see how allowing an attraction to be heard in opposition to the substantive choice on a problem beneath part 67 or part 68 would possibly trigger undue delay or expense within the final decision of the underlying dispute between the events. Allowing an attraction in opposition to a dismissal of such a problem would go away open the likelihood that the attraction would possibly succeed and the court docket would possibly make orders setting apart an award and/or remitting the underlying dispute to the tribunal for reconsideration in entire or partially. Alternatively, if the attraction was in opposition to a profitable problem, till the attraction was decided the events can be unable to take steps to treatment the deficiencies recognized by the primary occasion choose and can be unable to progress the prevailing arbitration or, if acceptable, begin a brand new arbitration to resolve the underlying dispute.
It’s rather more troublesome to see how an attraction in opposition to one side of a closing prices order following a problem beneath part 67 or part 68 may have the same disruptive impact upon the decision of a dispute that has been referred to arbitration. It’s true that allowing a prices attraction will inevitably require the expenditure of additional assets, and the result could have monetary penalties for the events, however it’s troublesome to see how the choice on such a restricted matter may trigger any uncertainty within the arbitral course of itself.
That’s readily obvious within the immediate case. In his part 68 Judgment, the Choose had decided to put aside the Awards. He had additionally refused permission to attraction. It’s thus clear that the Awards have ceased to have any impact, and nothing in an attraction in opposition to the foreign money by which the Prices Order was made may have any impression upon the standing of the Awards. Nor may an attraction in opposition to the foreign money of the Prices Order have any authorized bearing upon the steps that the events would possibly now contemplate taking to resolve any excellent disputes between them (whether or not topic to an arbitration settlement or in any other case). The one impression that an attraction on prices may have upon the events is a purely monetary one.
Second, and focussing on the conventional which means of the phrases “beneath this part”, in contrast to the choice in NIOC (which was whether or not a proper of problem beneath part 67 had been misplaced by cause of part 73) or the choice in Diag Human (which was whether or not to order safety beneath part 70(7) for a problem beneath sections 67 and 68), the choice that the Prices Order must be made in sterling was not a call made beneath and even by reference to any provisions of the Arbitration Act in any respect.
The Choose’s choice on the foreign money of the Prices Order was expressly made beneath and by reference to the totally separate and free-standing regime created by part 51 of the Senior Courts Act 1981 (“part 51 SCA”) and CPR Half 44.2(1). Part 51 SCA offers, in materials half,
“(1) Topic to the provisions of this or another enactment and to guidelines of court docket, the prices of and incidental to all proceedings in … (b) the Excessive Court docket … shall be within the discretion of the court docket.
…
(3) The court docket shall have full energy to find out by whom and to what extent the prices are to be paid.”
Equally, CPR Half 44.2(1) offers,

“The court docket has discretion as to
(a) whether or not prices are payable by one social gathering to a different;
(b) the quantity of these prices; and
(c) when they’re to be paid.”
It isn’t an important linguistic stretch to carry (because the Courts did in NIOC and Diag Human) {that a} choice made by reference to a selected provision of the Arbitration Act, which solely has impact for the needs of sections 67 and 68, must be thought to be a call “beneath” these sections for the needs of sections 67(4) and 68(4). It’s, nevertheless, not a standard use of language to explain a call made beneath a completely separate and free-standing jurisdictional regime as being a call made “beneath” sections 67 or 68. That was the simple foundation upon which the Court docket in Manchester Metropolis held {that a} choice made by reference to widespread regulation ideas on the publication of judgments was not taken “beneath” sections 67 or 68 for the needs of sections 67(4) or 68(4).
Third, and likewise in distinction to the conditions in NIOC or Diag Human, it isn’t straightforward to see how a call on a closing prices order following dedication of a problem beneath part 68 might be thought to be being “a part of the method” of reaching a call on a bit 68 software or as being “inside the compass” of a problem beneath part 68.
In NIOC, the dedication beneath part 73 of whether or not the applicant had misplaced its proper to convey its problem beneath part 67 was clearly a vital first step within the course of for figuring out the problem beneath part 67. A call that the suitable had been misplaced would have resulted within the part 67 software being dismissed. A call that the take a look at set out in part 73 was not happy meant that the court docket needed to proceed to contemplate the substance of the part 67 software.
Likewise, in Diag Human, the putative appellant sought an order that the respondent’s software beneath sections 67 and 68 must be dismissed except the cash payable beneath the arbitral award was paid into court docket. As soon as such an software had been made, the query of whether or not safety must be supplied needed to be resolved earlier than the court docket may proceed to find out the substantive software beneath sections 67 and 68.
In distinction, the Choose’s choice to make the ultimate Prices Order in sterling had no impact no matter on the query of whether or not he wanted to go on to contemplate the part 68 problem. Neither was the applying for prices made as a precondition to the listening to of the part 68 problem. As I’ve indicated, by the point the Choose got here to make the Prices Order, he had already decided the part 68 software by handing down his part 68 Judgment, and he had determined to put aside the Awards. The choice to make the Prices Order, and to take action in sterling, was totally consequential upon that prior dedication beneath part 68. It was additionally a call made exercising the court docket’s powers beneath part 51 SCA as I’ve defined at [39] above.
Fourth, I’d reject the submission by Nigeria that it will be absurd or illogical if the choice on the foreign money of the Prices Order didn’t fall inside part 68(4), on condition that it’s common floor that the substantive choice on the part 68 problem was caught by part 68(4).
I settle for that the courts won’t interpret a statute in order to provide an absurd consequence except clearly constrained to take action by the phrases used (PACCAR at [43]). Nevertheless, the submission that it’s absurd for there to be a restriction on appeals in opposition to the substantive choice however not on appeals in opposition to a consequential prices order views the matter via the prism of typical civil litigation, reasonably than via the related lens of the coverage of the Arbitration Act to which I’ve referred above. The submission additionally fails to differentiate that the court docket’s energy to make orders in respect of prices is derived from part 51 SCA. As soon as it’s appreciated that the aim of the restriction on appeals in part 68(4) is to forestall delay and expense within the decision of the underlying dispute by arbitration, it may be seen that it isn’t illogical, nonetheless much less absurd, to conclude that there must be a restriction on substantive appeals which have the capability to disrupt that arbitral course of, however no restriction on prices appeals that don’t. That conclusion is strengthened by the consideration {that a} proper of attraction given by the overall regulation shouldn’t be eliminated besides by clear phrases or vital implication.
I’d additionally reject Nigeria’s arguments based mostly upon the recommendations made by Males LJ and Sir Geoffrey Vos MR in argument within the Manchester Metropolis case, to which reference was made by Sir Julian Flaux C in his judgment in that case at [39] (see above). I preface my consideration of these recommendations by noting that Sir Julian Flaux C made it crystal clear in his judgment at [40] that it was not vital to find out whether or not these recommendations have been right, and therefore they didn’t type any a part of the choice or reasoning within the case.
As reported, Males LJ posited in argument {that a} case administration choice as to how a bit 68 problem must be handled could be caught by part 68(4). I can nicely see that allowing an attraction in opposition to a call, for instance, as to the extent of disclosure required, or the proof which must be given on the listening to of a problem beneath part 67 or part 68, may simply have the capability to trigger delay and expense within the dedication of that substantive problem, and therefore to the decision of the underlying arbitral course of itself. That might not be in accord with the coverage of the Arbitration Act, and so it’s comprehensible why such a call could be thought to be “a part of the method” beneath part 67 or 68, however that the strict jurisdictional foundation for such a call can be the court docket’s case administration powers beneath the Civil Process Guidelines (as authorised by part 1 of the Civil Process Act 1997).
In Manchester Metropolis, Sir Geoffrey Vos MR was additionally reported as having instructed in argument {that a} “consequential choice” on a bit 68 software, “for instance as to prices”, would even be caught by the limitation in part 68(4). For the explanations I’ve set out, if that remark was directed at a consequential prices order made after the dedication of the substantive problem beneath part 68, I’d respectfully disagree. I’d additionally assume it very unlikely {that a} prices order made within the regular course of occasions at an interlocutory stage in an software beneath part 68 can be caught by part 68(4). It might be uncommon for such an order to have any impression upon the progress of the substantive software, not least as a result of the court docket may use its discretion in setting the phrases of such an order (for instance by not ordering fast detailed evaluation) to make sure that there was no such disruption.
In any occasion, as in Manchester Metropolis, it isn’t vital to achieve a concluded view on all such prospects so as to decide whether or not this Court docket has jurisdiction to listen to an attraction in opposition to the Prices Order within the immediate case. In my opinion, and for the explanations that I’ve given, I contemplate that there’s such jurisdiction however the phrases of part 68(4).
Giving causes for the refusal of permission to attraction

Earlier than turning to contemplate whether or not to grant permission to attraction and, in that case, to the deserves of the attraction, I’d observe that in the identical manner because the Choose was fairly proper to order his judgment on the query of permission to attraction his substantive choice beneath part 68 due to the impact of part 68(4), it will have been fascinating if the events had alerted him to the likelihood that part 68(4) may additionally have utilized to his choice on the foreign money of the Prices Order earlier than he gave his choice refusing permission to attraction that call.
That’s as a result of if a call to refuse permission to attraction would be the final phrase and there’s no chance of an additional software for permission to attraction, it’s fascinating {that a} choose ought to give ample causes in order that it may be seen that he has correctly thought of the entire arguments and in order that the events know why no additional attraction is feasible: see (albeit within the context of a closing refusal of permission to attraction by the Court docket of Attraction) Municipio de Mariana v BHP Group plc [2021] EWCA Civ 1156 at [55]-[56] and the authorities referred to therein.
If such a course of is adopted in future circumstances, there can be no justification for a disenchanted social gathering following the choice course taken by P&ID on this case of mounting a collateral problem to the Choose’s refusal of permission to attraction on the idea that he didn’t give sufficient (or certainly any) causes. As it’s, nevertheless, as a result of I contemplate that part 68(4) doesn’t apply within the immediate case, it’s pointless to go on to contemplate that different rivalry additional.
Permission to attraction

I contemplate that an attraction in opposition to the foreign money of the Prices Order based mostly upon the evaluation of John Kimbell QC in Cathay Pacific has a sufficiently practical prospect of success to warrant the grant of permission to attraction. Additional, as indicated by Males LJ in NIOC at [60], one of many intentions behind the limitation in part 67(4) and equal provisions of the Arbitration Act, and the overall coverage of non-intervention of the courts within the arbitral course of (see part 1(c) of the Arbitration Act), is that appeals in arbitration circumstances ought to typically be restricted to some essential level of precept. To the extent that this represents a further issue within the choice whether or not to grant permission to attraction, I additionally contemplate that the purpose on the foreign money of the Prices Order is of ample common significance to fulfill that requirement.
The substance of the attraction

In Cathay Pacific, the solicitors for the profitable defendant had accounted for his or her time and had invoiced their consumer (a German firm), in euros. The deputy choose was requested to evaluate these prices summarily and to make an order for cost of the resultant quantity in euros. The paying social gathering objected that the court docket may solely make an order for cost of prices in sterling. The problem that arises within the immediate case was not subsequently, the central subject in Cathay Pacific.
Nevertheless, following his conclusion that he did have jurisdiction to award prices in a overseas foreign money, John Kimbell QC thought of whether or not it was acceptable in his discretion to take action. On that query he referred at [46]-[50] to the indemnity precept within the following phrases,
“46. It has been recognised since at the least 1860 that prices awarded by the courts are awards of a statutory indemnity:
“Prices as between social gathering and social gathering are given by the regulation as an indemnity to the particular person entitled to them; they aren’t imposed as a punishment on the social gathering who pays them, nor given as a bonus to the social gathering who receives them. Subsequently, if the extent of the damnification may be discovered, the extent to which prices should be allowed can be ascertained”: per Bramwell B in Harold v Smith (1860) 5 H & N 381, 385.
47. This fundamental precept of indemnity has remained intact. In Brawley v Marczynski (No 2) [2003] 1 WLR 813, para 12, Longmore LJ stated: “All value awards are supposed to be compensatory within the sense that the litigant is compensated for the legal responsibility he has incurred to his personal legal professionals.”
48. Provided that value award is meant to be compensatory and within the type of a statutory indemnity, there should be no issue in precept within the court docket making use of Companies Europe Atlantique Sud v Stockholm Rederiaktiebolag (“The Folias”) [1979] AC 685 on this context. The query is: by which foreign money is it most acceptable to compensate the receiving social gathering for its expenditure on the litigation.
49. This method has already been adopted within the context of contractual indemnities. In Meals Corpn of India v Carras (Hellas) Ltd (“The Dione”) [1980] 2 Lloyd’s Rep 577, a shipowner paid time beyond regulation to the stevedores in Buenos Aires. Beneath the phrases of the charterparty, the proprietor was entitled to a 50% contribution from the charterers. Homeowners paid 100% of the prices in Argentinian pesos utilizing US {dollars} to amass the pesos to take action. Homeowners subsequently claimed half of the associated fee in US {dollars} (on the fee of conversion prevailing on the time the sum required to purchase the pesos to pay the stevedores was remitted to the native brokers). The declare in US {dollars} was upheld. Lloyd J held that for claims for an indemnity (arising beneath a contract) the precept of The Folias ought to use. The court docket ought to establish the foreign money by which the loss is definitely felt or borne. The claimant’s loss was suffered in US {dollars} and subsequently the arbitrators have been proper to subject an award in that foreign money.
50. In my judgment, there is no such thing as a cause why the identical method as was taken in The Dione shouldn’t be taken within the context of a statutory indemnity for the award of prices. The truth that the supply of the suitable to the indemnity within the one case is a contract and within the different statute makes no distinction. In each circumstances, it’s acceptable to inquire as to the foreign money which most really displays the loss which the claimant has suffered.”
On the info of Cathay Pacific, because it was clear that Lufthansa had been invoiced and had paid its solicitors’ prices in euros, John Kimbell QC held that the euro was “the foreign money which most precisely expresses [its] loss and the foreign money by which it should be compensated.”

I contemplate that the Choose was right to say no to comply with this method within the immediate case.
I agree with John Kimbell QC that, as defined by Bramwell B in Harold v Smith, an award of prices is a type of statutory indemnity. Nevertheless, the place I half firm along with his evaluation is that I don’t contemplate that an award of prices must be considered as an indemnity which is designed to compensate a receiving social gathering in opposition to loss. Relatively, an award of prices is a statutory indemnity in opposition to the legal responsibility that the receiving social gathering has incurred to his personal legal professionals.
That distinction is clearly illustrated by the numerous circumstances by which prices have been awarded to a profitable social gathering to litigation though it is usually obvious that they’ve personally suffered no loss as a result of the charges of the legal professionals appearing for them have been paid by a 3rd social gathering corresponding to a union, an insurer or a litigation funder. Makes an attempt by paying events to keep away from an hostile prices order in these circumstances, on the idea that the receiving social gathering has not really paid any a part of their authorized prices, have been constantly rejected. The place was nicely summarised by Vos J (as he then was) in Popat v Edwin Coe LLP [2013] EWHC 4524 (Ch) at [35] the place, after a assessment of the authorities, he concluded,
“35. The query that the court docket has to reply in deciding in any specific case, the place there’s a social gathering claiming to be indemnified with respect of prices is whether or not that particular person has paid or develop into liable to pay the prices. The query of who really discharges the prices will not be the related query, because the circumstances present. In each case that I’ve cited the prices have been really discharged by some third social gathering, by the insurer, by the Vehicle Affiliation, by the union or by another person. It issues not that the third social gathering has paid. What issues is whether or not, as Lord Phillips stated [in Thornley v Lang [2004] 1 WLR 378], the social gathering claiming indemnity has “develop into liable to pay” these prices.”
Furthermore, when the remarks of Longmore LJ in Brawley v Marczynski (No 2) [2003] 1 WLR 813 (“Brawley”) are thought of of their full context, it’s obvious that they don’t assist John Kimbell QC’s thesis that orders for prices are supposed to offer compensation for loss in the identical manner as awards of damages in tort or for breach of contract.
In Brawley, the paying social gathering objected that he shouldn’t have been ordered to pay prices to be assessed on the indemnity foundation to a legally-aided receiving social gathering. Though the paying social gathering accepted that due to the wording of the authorized support laws, the indemnity precept didn’t strictly apply, he nonetheless contended that the trial choose shouldn’t have ordered prices to be assessed on the indemnity foundation. His argument was that the principle cause for an award of indemnity prices was to keep away from unfairness, as a result of an order for evaluation on the usual foundation would nearly invariably consequence within the receiving social gathering being out of pocket. He contended that this might not happen with a legally-aided social gathering who wouldn’t should pay something himself in the direction of his prices, or would possibly solely should make a restricted contribution based mostly on his means.
It was in that context that Longmore LJ noticed, at [12],
“[12] The truth is the rationale for an award of indemnity prices is reasonably totally different. Because the introduction of the CPR, indemnity prices have been described as each compensatory and penal; however these ideas usually are not antitheses. All prices awards are supposed to be compensatory within the sense that the litigant is compensated for the legal responsibility he has incurred to his personal legal professionals. The ‘indemnity precept’ ensures that an award of prices (whether or not on a typical or an indemnity foundation) doesn’t allow the litigant to revenue from any prices order. However an order for indemnity prices is commonly supposed to function penally on the dropping social gathering within the sense that the court docket disapproves of that social gathering’s conduct in relation to the litigation.”
In context, it’s clear that Longmore LJ’s reference to an award of prices being “compensatory” was to differentiate it from an award of prices which was designed to function “penally” within the sense of expressing the court docket’s disapproval of the dropping social gathering’s conduct. Longmore LJ was not addressing the query of whether or not the aim of an award of prices was to offer compensation for loss, and certainly he made it clear that his reference to an award of prices being compensatory was “within the sense that the litigant is compensated for the legal responsibility he has incurred to his personal legal professionals” (my emphasis). I subsequently don’t contemplate that the remarks of Longmore LJ present any basis for the conclusion that when making an award of prices, the court docket has to conduct an inquiry into the foreign money which most really displays any underlying loss which the receiving social gathering has suffered, as instructed in contract or tort circumstances corresponding to The Folias and The Dione.
I’d additionally observe that in distinction to circumstances in contract or tort, by which the court docket listening to the declare will essentially pay attention to the style by which the claimant claims to have suffered the losses for which it seeks damages, a court docket deciding whether or not to award prices will normally do not know of the preparations which the receiving social gathering has used to acquire the funds to pay its legal professionals. It might additionally typically be totally inappropriate and disproportionate for the court docket to embark upon such an inquiry into the enterprise and affairs of the receiving social gathering on the behest of the paying social gathering.
In my judgment, subsequently, the Choose was proper to just accept Nigeria’s simple submission that as a result of Nigeria had been invoiced and had incurred its legal responsibility to its solicitors in sterling, and had paid these payments in sterling, the court docket should make its Prices Order in sterling.
Disposal

I’d subsequently grant P&ID permission to attraction, however would dismiss the attraction.
Lord Justice Fraser:

I agree.
Sir Julian Flaux, Chancellor of the Excessive Court docket:

I additionally agree.