The dispute concerned the refusal of the landlord (LIDL) to grant consent for the assignment of a lease held by the tenant (JF). The parties entered into arbitration, and LIDL obtained an award that the refusal was reasonable. JF then commenced a second arbitration, raising the issue that there had been a delay in the landlord serving written notice of its decision not to consent to the assignment.
In Conquer v Boot [1928] 2 KB 336 it was established that a claimant cannot proceed against a defendant on the same issue in a dispute more than once. This case was upheld by Purser & Co (Hillingdon) Ltd v Jackson and another [1971] 1 QB 166 in the context of arbitration, providing that if an issue falls within the terms of reference of a tribunal, the claimant is estopped from proceeding on that issue in a subsequent arbitration. The issue before Judge Frances Kirkham was whether this decision would also apply to an arbitration under the Arbitration Act 1996.
The Judge concluded that the dispute referred to the first arbitrator comprised both the unreasonable withholding of consent, and the delay issues. No agreement had been made retaining the rights of JF to raise the delay issue in subsequent proceedings. Therefore, the second arbitrator did not have jurisdiction to decide the question of delay, as that issue had already been referred to the first arbitrator.
Even though the first arbitrator did not make a decision in relation to the issue of delay, that issue was raised and an adjudication was made. Accordingly JF was estopped from proceeding with that issue in a subsequent arbitration.
