Thomas O'Donoghue v Enterprise Inns Plc provides an interesting example of the High Court refusing a request to set aside an award on the grounds of serious irregularity (under Section 68(2)(a) of the Arbitration Act 1996). The arbitrator had made his decision without an oral hearing despite the protest of one of the parties. It was held that even if this had been an error, simple errors did not equate to a serious irregularity where no substantial injustice had been caused and there was no failure to act fairly and impartially as between the parties.

The parties had agreed to arbitrate a rent review for a pub. Submissions were made from the landlord, his expert and the tenant. The tenant claimed, without giving adequate reasons, that his case could only be presented fairly if he could cross-examine the expert at an oral hearing. When the arbitrator assessed the rent without an oral hearing, the tenant sought to have the award set aside by the court.

In the court's view, the arbitrator had been conspicuously fair in his exercise of his discretion. The mere possibility that a hearing would have produced a different result did not amount to a substantial injustice.

(Thomas O'Donoghue v Enterprise Inns Plc, [2008] EWHC 2273 (Ch))