The Court of Appeal dismissed the appeal on the grounds that the relevant matters had been put into the arena, and that even if Warborough had been given the opportunity to submit a further report, this would not have so changed their case as to justify the conclusion that the lack of opportunity caused substantial injustice.
An arbitral tribunal has the duty under section 33(1)(a) of the Arbitration Act to "act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent". Failure to fulfil this duty is a basis under section 68(2) of the Arbitration Act 1996 upon which a court can find there has been a serious irregularity if that failure has caused or will cause injustice to the party denied a reasonable opportunity of putting its case. Both the first court and the Court of Appeal said there had been no breach of either section by the arbitrator. Warborough's surveyor had put forward the comparables used by the arbitrator to set the rent and the point about the retail user was made by the respondent. The fact that a possibility of an adjustment being made to reflect the difference in user was only raised later, did not deprive Warborough of an opportunity of putting a case on the point, as the information had been in the arena, and they could presumably have anticipated how the arbitrator might apply it.