The applicant challenged an arbitral award on the basis that the tribunal was in error in finding that it lacked substantive jurisdiction (pursuant to section 67 of the Arbitration Act 1996). Section 67(3) provides that the court may confirm the award, vary it or set it aside (in whole or in part). In this case, the judge had found that the tribunal's jurisdiction award was wrong but he declined to grant any relief (on the basis that it was clear that the tribunal would have rejected the claim anyway, and so the jurisdiction error was inconsequential).

The judge refused permission to appeal and the applicant applied for permission to appeal to the Court of Appeal. The Court of Appeal has now refused that application.

It was held that section 67(3) does not prevent a judge from making no order on an application (although cases of no relief being granted following a well-founded application are rare). Longmore LJ commented that: "It would be absurd to suppose that if the arbitrator had expressly held that, if he had had jurisdiction, he would still have dismissed the claim, the court still had to either confirm or set aside the award".

In any event, an appeal can only be brought if the judge himself has given permission to appeal. Section 67(4) makes it clear that the Court of Appeal cannot give permission to appeal.