English Court Of Appeal Confirms Limits On Appeals From Section 68 Decisions

The Court of Appeal has dismissed an attempt to appeal a High Court decision refusing a section 68 challenge to an arbitral award, reinforcing the limited scope for judicial intervention in arbitrations

In K1 v B [2026] EWCA Civ 261, the Court of Appeal ruled that it lacked jurisdiction to grant permission to appeal a High Court decision rejecting an application to amend an existing challenge so as to add an out-of-time ground under section 68(2)(g) of the Arbitration Act 1996 (the Act). The case involved an attempt to argue that an arbitral award was contrary to public policy because it allegedly enforced what was said to be a contract for fraud. The High Court had previously found that such a claim did not fall within the scope of section 68(2)(g), on the basis that it went to the substantive merits of the dispute rather than any procedural irregularity in the arbitration. The Court of Appeal, by finding that it had no jurisdiction to grant permission to appeal the High Court’s order, confirmed that the power to grant permission to appeal under section 68(4) is reserved to the court of first instance, emphasising the restrictive statutory limits on appellate review in section 68 challenges.

Background

The dispute arose from a 2018 letter of engagement (LOE) between B and K1. B claimed that it had helped K1 and its affiliates secure favourable settlements in two arbitrations by gathering information through “pretext” enquiries—approaches said to involve misrepresentations as to the purpose of the enquiries. 

B initiated arbitration proceedings under the LCIA Rules, seeking a success fee of 2% of the settlement sums. The tribunal found in B’s favour, awarding it US$3.2 million. K1 and its affiliates challenged the award under section 67 of the Arbitration Act, arguing that the tribunal lacked jurisdiction over some of the parties. Separately, K1 sought to amend its challenge to include a section 68(2)(g) claim, alleging that the LOE was a “contract for fraud” and that the award was therefore contrary to public policy.

Our previous blogpost on this case can be found here.

The Law: Section 68(2)(g) and Appeal Restrictions

Section 68 of the Act allows a party to challenge an arbitral award on the basis of a “serious irregularity” that has caused substantial injustice. Sub-section (2)(g) specifically refers to cases where “the award [was] obtained by fraud or the award or the way in which it was procured [was] contrary to public policy.”

However, section 68(4) imposes a significant limitation: any appeal from a decision under this section requires the leave of the court that made the decision. By operation of section 105 of the Act, that court is the High Court (or the County Court, where applicable). Accordingly, where the High Court refuses permission to appeal under section 68(4), the Court of Appeal has no jurisdiction to grant permission in its place.

The High Court’s Decision

In October 2025, Mr Justice Robin Knowles dismissed K1’s application to introduce a ground under section 68(2)(g) to challenge the award. The High Court held that the claim—that the LOE was a contract for fraud—did not fall within the scope of section 68(2)(g). The High Court emphasised that section 68 is concerned with procedural fairness, not the substantive merits of the dispute. Since K1 had not raised the fraud issue during the arbitration, and there was no suggestion that the arbitration process itself had been tainted, the challenge could not proceed. The Court refused permission to appeal, and K1 sought to renew its application in the Court of Appeal.

The Court of Appeal’s Decision

The primary question before the Court of Appeal was whether it had jurisdiction to grant permission to appeal against the High Court's order. The Court held that it had no power to grant permission to appeal because of the clear wording of section 68(4), read with section 105, which permitted only the court of first instance to grant permission to appeal. 

K1 argued that the High Court’s refusal to allow the proposed amendment was not truly a decision “under” section 68, but rather a threshold ruling that section 68 was not engaged and that the court therefore lacked jurisdiction to hear the challenge. The Court of Appeal rejected this characterisation, holding that the High Court had applied section 68 and concluded that, even if the alleged facts were established, they did not fall within section 68(2)(g). That conclusion involved the application of the statutory test and was therefore a decision "under" section 68, appealable only with the High Court's permission under section 68(4). In reaching that conclusion, the Court of Appeal was not required to, and did not, undertake any detailed analysis of the substantive scope of section 68(2)(g).

The Court also dismissed K1’s other argument that a consent order extending the time for seeking permission to appeal conferred jurisdiction on the Court of Appeal to grant permission to appeal. The Court observed that: 

• the consent order in question did not confer a right to seek permission, rather it extended the time limit for making such an application (if available);
• there was no suggestion that the Judge was being asked to make an order varying section 68(4); 
• a consent order could not override the statutory limitation as to the Court of Appeal's powers; and
• Section 68 is a mandatory provision that is not subject to an agreement to the contrary.

The Court also observed that there may be exceptional circumstances in which the Court of Appeal could intervene notwithstanding section 68(4), including where the court of first instance acted without jurisdiction, where the purported decision was not a decision at all, or where the hearing infringed the applicant’s right to a fair trial. None of those circumstances arose in this case.

Comment

This decision is a clear statement of the Court of Appeal’s strict approach to the statutory limits on appeals in section 68 cases. The Court was not concerned with revisiting the scope of section 68(2)(g), but with enforcing the jurisdictional framework established by the Act, under which permission to appeal under section 68(4) is reserved to the court of first instance.

By rejecting attempts to characterise the High Court’s refusal as something other than a decision “under” section 68, and by confirming that procedural devices such as consent orders cannot expand the Court of Appeal’s jurisdiction, the Court reaffirmed the finality intended by the Act’s appeal restrictions. The judgment also makes clear that only in narrowly defined and exceptional circumstances will the Court of Appeal be able to intervene notwithstanding section 68(4).

The decision therefore serves as a reminder that challenges under section 68 are subject not only to a high substantive threshold, but also to a tightly confined appellate route, reflecting the legislature’s intention to limit curial intervention in arbitral proceedings.

The authors would like to thank Mohammed Al-Ahbabi for his contribution to this post.

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