K1 v B [2026] EWCA Civ 261

K1 sought permission to appeal a refusal to amend its arbitration award challenge under s.68(2)(g) of the Arbitration Act 1996. The Court of Appeal held it lacked jurisdiction under s.68(4), as the first instance judge is sole gatekeeper for permission to appeal.

Facts

The Applicant (K1) brought an in-time challenge under s.67 of the Arbitration Act 1996 against an arbitration award dated 10 April 2024 made in favour of the Respondent (B). The underlying dispute concerned a letter of engagement (LOE) dated 28 May 2018 under which B agreed to provide “business intelligence services”, allegedly including so-called “pretext” enquiries involving misleading representations to obtain information. B claimed 2% of sums received by K1 and associated companies (A1, A3) in settlement of two arbitrations in which the information had been deployed. The tribunal found for B.

Before the s.67 challenge was determined, K1 applied on 16 April 2025 to amend its challenge to introduce an out-of-time ground under s.68(2)(g), contending the LOE was “a contract for fraud”. Mr Justice Robin Knowles dismissed the application, holding that s.68(2)(g) was not engaged by a complaint that the arbitral proceedings involved enforcement of an illegal contract, because s.68(2)(g) focuses on the parties’ conduct in the arbitration and the process by which the award was obtained. He refused permission to appeal. K1 renewed the application to the Court of Appeal.

Issues

Two issues arose:

• Whether a consent order approved by the Judge on 13 November 2025, which extended time for seeking permission to appeal, conferred a right upon K1 to seek permission from the Court of Appeal notwithstanding s.68(4) of the 1996 Act.
• Whether the Judge’s decision that s.68(2)(g) was not engaged was a “decision of the court under [s.68]” within s.68(4), or instead a decision as to the court’s jurisdiction that falls outside that limitation.

Arguments

Applicant (K1)

Mr Wassouf argued that the consent order had the effect of giving K1 a right to apply to the Court of Appeal for permission. Further, he submitted that the Judge’s decision was jurisdictional in nature – a decision that s.68 was unavailable on the facts alleged – analogous to the jurisdictional decisions in Cetelem SA v Roust Holdings [2005] EWCA Civ 618 and Sumukan Ltd v Commonwealth Secretariat [2007] EWCA Civ 243. He also argued that the usual requirement of obtaining permission from the Court of Appeal would sufficiently protect the 1996 Act’s policy of finality.

Respondent (B)

Mr Carpenter KC contended that s.68(4) precluded the Court of Appeal from granting permission, the Judge’s ruling being a decision under s.68 on the merits of the proposed challenge rather than a jurisdictional ruling.

Judgment

Lord Justice Foxton (with whom Phillips LJ agreed) dismissed the application.

Consent order point

The consent order adopted the standard McDonald v Rose [2019] EWCA Civ 4 wording extending time, and did not purport to confer any right of appeal. In any event, the limitation in s.68(4) arises as a matter of statute; neither a consent order nor the first instance judge can confer jurisdiction on the Court of Appeal that the 1996 Act denies it. Section 68 is a mandatory provision under s.4(1) and Schedule 1, and parties cannot confer jurisdiction by agreement or estoppel. Reference was made to Osler v Osler [2024] EWCA Civ 516.

Scope of s.68(4)

Foxton LJ reviewed Cetelem, Sumukan and National Iranian Oil Company v Crescent Petroleum [2023] EWCA Civ 826. Cetelem concerned a statute expressly limiting the court’s power to certain types of order in urgent cases; Sumukan concerned language in s.69(1) expressly characterising an exclusion agreement as excluding the court’s “jurisdiction”. In both, there was a readily discernible distinction between jurisdictional matters and the merits.

By contrast, s.68 requires an applicant to establish both one of the closed list of irregularities in s.68(2) and substantial injustice. Determination of those matters is the determination of the merits of the s.68 challenge, not a preliminary jurisdictional question. In holding that s.68(2)(g) was not engaged, the Judge was “overseeing the arbitration process” (adopting Waller LJ’s language in Sumukan), not determining whether the court’s jurisdiction was excluded.

Mr Wassouf’s argument would produce artificial and unworkable distinctions within what is usually a composite exercise, and would undermine the finality s.68(4) is intended to secure. It would equally affect questions under s.68(2)(c), (d) and (f), the “substantial injustice” requirement, and provisions such as s.69 and s.45 concerning whether a matter is “a question of law” arising “out of the award”. It would also potentially allow such points to be taken on appeal even where not raised below. There was no support in the statutory language for such an outcome.

Confidentiality

Given the Court of Appeal had no jurisdiction, it would not be appropriate to revisit the Commercial Court’s orders on confidentiality and anonymisation. The order for confidentiality sought was granted, with the public interest served by publication of an anonymised judgment.

Implications

The decision reinforces the strict gatekeeping role of the first instance judge in respect of appeals arising from decisions under s.68 (and the other seventeen similar provisions) of the Arbitration Act 1996. It clarifies that a decision on the proper scope or interpretation of one of the closed list of serious irregularities in s.68(2) is a decision on the merits of the s.68 application, not a jurisdictional decision falling outside s.68(4).

The narrow exceptions permitting the Court of Appeal to intervene – decisions made without jurisdiction (as in Cetelem), purported decisions that are not decisions at all, or hearings infringing the right to a fair trial (North Range Shipping; CGU International Insurance) – remain intact but are not engaged by arguments about the interpretation or scope of the substantive statutory provisions themselves.

The decision matters to parties contemplating challenges to arbitral awards: arguments that a particular complaint does or does not fall within s.68(2) must be determined finally by the Commercial Court judge, save in the narrow exceptional categories. It also confirms that consent orders using standard McDonald v Rose language do not and cannot confer a right of appeal that the statute withholds. The judgment is consistent with the policy expressed by the Departmental Advisory Committee and reiterated in NIOC: limiting appeals to preserve speed, finality and cost-effectiveness in arbitration supervision.

Verdict: The application for permission to appeal was dismissed. The Court of Appeal held that it had no jurisdiction under s.68(4) of the Arbitration Act 1996 to grant permission to appeal against the Judge’s refusal to permit the amendment introducing a s.68(2)(g) challenge. An order for confidentiality was made.

Source: K1 v B [2026] EWCA Civ 261