Held, (1) permission to cross-appeal refused. In circumstances where no permission had been sought from or granted by the judge, the first question was whether the Court of Appeal had jurisdiction to grant that permission, which depended on whether the judge’s decision that the right to challenge the arbitrators’ jurisdiction under section 67 of the Arbitration Act 1996 was not lost pursuant to section 73 was “a decision of the court under this section” (ie under section 67) within the meaning of section 67(4). It was established that only the first instance court could grant permission to appeal from a decision under section 67 and that the Court of Appeal had no jurisdiction to do so. Whether a decision that a party had not lost the right to challenge an award under section 73 was a decision under section 67 or section 68 for the purpose of section 67(4) and section 68(4) was a question of statutory interpretation. It had therefore to be approached having regard to the object of the 1996 Act and the principles by which the Act had to be interpreted set out in section 1, which included the avoidance of unnecessary delay and expense and the limitation of court intervention in the arbitral process, except where expressly provided. It was clear that section 73 was entirely ancillary to sections 67 and 68. It had no relevance or application independent of a challenge to an award under one or both of those sections. A decision whether a party had lost the right to challenge an award was undoubtedly “part of the process” for determining a challenge under section 67 or section 68 and was “within the compass” of those sections. It was a preliminary question, but not a question going to the court’s jurisdiction, the answer to which determined whether the court needed to consider the merits of the section 67 or section 68 challenge. “Decision” was a broad term and the determination of a section 73 issue was naturally to be regarded as a decision under section 67 or section 68 as a matter of language, whichever way it went. There was no justification for saying that it was a decision under section 67 or section 68 if the section 73 issue was decided in favour of the award creditor , but not if it went against the award creditor. Moreover, it was in accordance with the policy of the Act, as consistently described in the case law, to interpret section 67(4) and section 68(4) as encompassing such a decision. It would be paradoxical to interpret those provisions to mean that only the first instance court could grant permission on the final decision to uphold or dismiss the challenge to an award, but that the Court of Appeal could give permission on preliminary or case management decisions when the first instance court had refused such permission. Although it might be said that the Court of Appeal could be trusted not to give permission in unmeritorious cases, and would be unlikely to do so on case management decisions, even the process of applying for such permission would cause delay and expense, while leaving the status of the award in limbo until the application had been determined. The fact that there were other provisions of the Act, such as section 9 and sections 66 and 103, which might raise broadly similar issues as to the scope of an arbitration clause as arose under section 67, but which contained no equivalent restriction on the grant of permission to appeal, was nothing to the point. There could be no justification for straining to avoid the operation of the restriction on appeals contained in section 67(4). On the contrary, that restriction was in accordance with the statutory policy of non-intervention by the court except as expressly provided. Accordingly the Court of Appeal had no jurisdiction to grant permission on the cross-appeal (paras 37, 64–69).

(2) Appeal dismissed. The judge had not taken the wrong approach to a summary judgment application and was right to conclude that the claimant’s section 67 case had no realistic prospect of success ( paras 92, 97, 100–101, 102, 103).