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Flaux J denied Owners permission to appeal his decision above, finding, amongst other matters, that it involved no question of general importance. Owners then applied to the Court of Appeal, challenging Flaux J's decision to refuse permission. Owners highlighted that when Hamblen J had initially granted Charterers leave to appeal the underlying award on a point of law, Hamblen J had found a question of general importance.
The Court of Appeal clarified that it had no jurisdiction to entertain such an application under Section 69(8) of the 1996 Act. However, it retained residual jurisdiction to set aside the Judge's refusal of permission if the refusal was not a 'decision' at all, that is, if the refusal of permission was tainted by bias, personal interest, or any substantial defect in the fairness of the proceedings. Significantly, an unreasoned decision can also be set aside (
The threshold for setting aside the Judge's refusal of permission is very high, and it does not appear that such an application has ever succeeded.
Owners' application was rejected. In doing so, the Court of Appeal emphasised that, when invoking the residual jurisdiction, it is "impermissible" to enter into the merits of the underlying decision. It also rejected Owners' submission that Flaux J had no jurisdiction to depart from Hamblen J's decision (which had in any case been made without the benefit of oral argument).