Section 67 of the Arbitration Act 1996 challenge and whether new evidence not put before the arbitrators can be adduced

The claimant challenged an arbitration award under section 67 of the Arbitration Act 1996. Section 67 challenges involve a rehearing (and not merely a review) of the issue of jurisdiction (but not the merits of the underlying case), so that the court must decide this issue for itself. The issue in this case was whether a party can be prevented from relying on evidence which is relevant and admissible but which was not adduced before the arbitrators. After a review of earlier caselaw, Males J concluded that in general a party is allowed to adduce such evidence, even if it may cause prejudice to the other side. Contrary to some earlier caselaw, it is not the case that the only ground on which such evidence may be excluded is prejudice: “I doubt, moreover, whether “prejudice” in the abstract is a free standing ground on which such evidence may be excluded”.

However, the parties’ right to adduce new evidence is not unconstrained by the court’s rules of procedure and so, for example, the court may refuse to allow evidence which does not comply with the rules on ensuring evidence is presented fairly (e.g. the rules relating to witness statements). It may not be sufficient in such circumstances to say that less weight should be given to that evidence instead. Generally, the parties should seek to agree such procedural matters at an early stage for section 67 challenges.

Furthermore, the court is not bound by procedural rulings made by the arbitrators. However, a party’s failure to comply with an order made by the arbitrators can be highly relevant. In this case, the judge agreed that it would be unjust to permit the claimant to rely now on a selection of documents without having given the full disclosure which was ordered in the arbitration (which it was probably now too late to give) and for that reason the claimant was not permitted to rely on the new evidence.