1 APPOINTMENT 1
1.1 Challenge to 1
1.1.1 The respondent challenges the qualification of the arbitrator 1
1.2 Disqualification for 2
1.2.1 Approached by one party 2
1.2.2 Called for interview by one party 3
1.3 Estoppel 4
1.3.1 Party who appoints an arbitrator subsequently estopped from ascer-taining that arbitrator has no authority 4
1.3.2 Is a newly appointed solicitor estopped from questioning the arbitrator’s jurisdiction? 6
1.4 Invalidity of 7
1.4.1 Respondent developer claims that Chartered Institute of Arbitrators has made an invalid appointment and that the arbitrator has no power to call a preliminary meeting 7
1.4.2 Appointment letter from nominating body signed by person other than that person named in contract 8
1.4.3 Respondent asserts the claimant has not complied with precondition related to arbitrator’s appointment 9
1.4.4 Respondent questions validity of appointment 12
1.4.5 Party contends appointment invalid as made out of time 13
1.4.6 Validity of unilateral reference for the appointment of an arbitrator 16
1.4.7 Conditional appointment of arbitrator 19
1.4.8 The appointment of an arbitrator must be made in strict compliance with the contract 22
1.4.9 Party attempts to nominate third arbitrator 23
1.4.10 Whether an appointment is valid where a joinder notice has been served prior to the date of that appointment 24
1.5 Non-Acceptance of Terms 25
1.5.1 Claimant refuses to accept arbitrator’s terms following appointment 25
1.6 Parties’ Failure to Agree 27
1.6.1 The dispute clause does not provide how an arbitrator should be appointed and the parties cannot agree 27
1.7 Withdrawal/Resignation From 28
1.7.1 Arbitrator attempts to withdraw after appointment 28
1.7.2 Arbitrator invited to withdraw 30
1.8 Wrong Reference 33
1.8.1 Appointment letter from nominating body cites incorrect reference to Act 33
1.8.2 Arbitrator’s qualifications do not meet specific requirements of arbi-tration agreement 35
2 ARBITRATION AGREEMENT 39
2.1 Ad hoc submissions 39
2.1.1 Reference to arbitration after dispute arises 39
2.1.2 Whether the subsequent conduct of the parties amounted to an "ad hoc"arbitration agreement 41
2.2 Condition Precedent 44
2.2.1 Whether arbitrator’s award is a condition precedent to a cause of action 44
2.2.2 Where a dispute has to be referred to engineer’s decision as a condition precedent to arbitration 46
2.3 Dispute as to Validity of 50
2.3.1 Compliance with contract, prerequisite to trigger written arbitration agreement 50
2.3.2 Respondent questions validity of arbitrator’s appointment as architect’s nal certificate had been issued 51
2.3.3 Where conclusiveness of architect’s final certificate time bars arbitration 53
2.4 Estoppel 54
2.4.1 Party asserts other party estopped from proceeding with arbitration 54
2.4.2 Whether a party is estopped by convention from denying the existence of an arbitration clause 56
2.5 Existence of 57
2.5.1 Contract contains conflicting dispute clauses 57
2.5.2 Is there a valid arbitration agreement if the contract is not signed? 59
2.5.3 Parties agree to arbitrate in mistaken belief that contract contains an arbitration clause 60
2.6 Existing Dispute 62
2.6.1 Where prior arbitration agreement may be too restrictive to cover an existing dispute 62
2.7 Invalidated by 63
2.7.1 Misrepresentation—where asserted options open to arbitrator and parties 63
2.7.2 Mistake—is award enforceable where arbitration based on a mistake of fact? 65
2.7.3 Illegality—whether illegality invalidates an arbitration clause 67
2.8 Need for written 68
2.8.1 Contract sealed with wrong company seal 68
2.8.2 Contract not signed—incorporated by reference? 69
2.8.3 Oral agreement to resolve dispute by arbitration 79
2.8.4 What effect an oral agreement made during the reference has on a written arbitration agreement 83
2.9 No dispute 85
2.9.1 Notice of arbitration given where no dispute exists 85
2.10 Time limits 88
2.10.1 Extension of time within which to commence arbitration 88
2.10.2 Power to the court to extend time prescribed by lease to commence arbitration proceedings 95
2.10.3 Whether time is of the essence in the appointment of an arbitrator in a rent review dispute 96
2.10.4 Application to appoint an arbitrator outwith the statutory time limit 98
2.10.5 Is determination of time limit issue a point of jurisdiction? 99
2.10.6 Arbitrator urged to reject an application for an extension of time to serve a statement of claim where the request is made out of time 101
2.10.7 Arbitrator has impossibly short period to make award within time limit set down in lease 105
2.11 Underlying contract, scope of 106
2.11.1 Contract is frustrated； does arbitration clause survive? 106
2.11.2 Contract void "ab initio"—severability of arbitration clause 107
3 ARBITRATOR 113
3.1 Arbitrator or expert 113
3.1.1 Where both parties are lay people and unlikely to adduce satisfactory evidence 113
3.1.2 Where a tenant wanted an expert not an arbitrator 114
3.2 Authority of 115
3.2.1 Party questions arbitrator’s authority unilaterally to set date for prelimi-nary meeting 115
3.2.2 Arbitrator directs a party to be represented at a meeting of experts 116
3.3 Death of 118
3.3.1 Arbitrator dies during interlocutory stage 118
3.3.2 Arbitrator dies during a long hearing 121
3.4 Examination by 122
3.4.1 Respondent accuses arbitrator of adopting an inquisitorial role 122
3.4.2 When the parties agree that the arbitrator can act inquisitorially 126
3.5 Functus officio 129
3.5.1 Joint arbitrators disagree and umpire appointed 129
3.5.2 Prior disclosure of contents of award to one party 131
3.5.3 Losing party telephones arbitrator 133
3.6 Independent advice 133
3.6.1 Arbitrator decides it necessary to consult a third party 133
3.7 Jurisdiction 135
3.7.1 Challenge of arbitrator’s jurisdiction at commencement of hearing 135
3.7.2 Arbitrators have no power to decide their own jurisdiction 137
3.7.3 Threat of injunction against arbitrator on grounds of no jurisdiction 139
3.7.4 Dispute in excess of jurisdiction 146
3.7.5 Did arbitrator have jurisdiction in dispute under ICE contract when question of reference of that dispute to engineer for his decision is disputed? 147
3.7.6 Respondent asserts that the claimant has failed to serve a notice to refer as required by the contract 149
3.7.7 Respondent asserts that arbitrator has no jurisdiction due to an oral agreement to refer the dispute to an official referee as arbitrator 151
3.7.8 Appointed as arbitrator instead of independent expert 153
3.7.9 Whether conduct amounts to a waiver or estoppel of objection to jurisdiction 154
3.7.10 The arbitrator has serious doubts about his jurisdiction 155
3.7.11 Arbitrator’s jurisdiction limited strictly to terms of arbitration agree-ment 152
3.8 Loss of documents 158
3.8.1 Loss or destruction of arbitrator’s notes following conclusion of hearing and before award 158
3.8.2 Arbitrator’s notes destroyed in car accident during hearing 159
3.9 Mistake by 161
3.9.1 Arbitrator accused of making a mistake in reasoning 161
3.10 Non-impartiality of 162
3.10.1 Arbitrator’s personal knowledge of one party 162
3.10.2 Arbitrator’s close personal connection with parties’ witnesses 164
3.10.3 Party to arbitration seeks to have arbitration award set aside because of arbitrator’s previous professional relationship with other party 165
3.10.4 Arbitrator discovers that his partner has previously acted for the claimant 167
3.10.5 Arbitrator enquires of health of one party and is accused of bias 169
3.10.6 Friend of arbitrator appointed as expert 169
3.10.7 Arbitrator accused of bias towards a party’s advocate 171
3.11 Note taking 172
3.11.1 General guidance 172
3.11.2 Shorthand writer unable to take note 176
3.12 Own knowledge, use of 177
3.12.1 Arbitrator holds contrary view to experts—how far can he use his own knowledge? 177
3.12.2 Arbitrator’s personal knowledge of a recent relevant rent agreement 180
3.12.3 Where arbitrator’s special knowledge not able to be used 183
3.12.4 Arbitrator’s personal knowledge of the facts in dispute 184
3.12.5 Caution exercised by an arbitrator in using his own knowledge and experience 185
3.12.6 Important to make parties aware of what is in the arbitrator’s mind 186
3.12.7 The arbitrator has received written closing submissions but neither party has addressed a legal issue which the arbitrator considers is relevant 187
3.12.8 Arbitrator—own knowledge in ex parte hearing 188
3.13 Post award involvement 191
3.13.1 Successful party claims award does not cover all issues referred to arbitration 191
3.14 Powers of 192
3.14.1 Can an arbitrator’s decision on an interlocutory matter be challenged successfully? 192
3.14.2 Power of an arbitrator to strike out case for want of prosecution 194
3.14.3 Consideration to take into account in striking out for want of prosecution 198
3.14.4 Respondent applies to arbitrator to strike out the claimant’s claim for want of prosecution 202
3.15 Removal of 212
3.15.1 Respondent seeks removal of arbitrator on grounds of bias and alleges that the arbitrator ignored a legal point 212
3.15.2 Parties wish to remove arbitrator 220
Appendix "A"—Model Revocation Agreement 224
Appendix "B"—New Agreement 225
3.15.3 One party dissatisfied with arbitrator 227
3.15.4 Respondent seeks removal of arbitrator on grounds of lack of impar-tiality 228
3.15.5 Is arbitrator’s shareholding in company associated with one party a ground for removal for misconduct? 230
3.15.6 Arbitrator has connection with one of the parties 232
3.16 Resignation 234
3.16.1 Arbitrator resigns and parties hold him responsible for costs thrown away 234
Appendix "A"—Model Agreement with Arbitrator on his resignation 241
3.16.2 Three arbitrator tribunal.Resignation of one arbitrator at beginning of hearing.Is termination of hearing and/or the proceedings inevitable? 242
4 AWARD 245
4.1 Action on 245
4.1.1 What effect has an arbitrator’s award on subsequent High Court proceedings? 245
4.1.2 Effectiveness of an award in a "name borrowing" arbitration 247
Appendix "A"—Model of a "Name Borrowing" Agreement 250
4.2 Appeal from 252
4.2.1 Parties rights of appeal from award 252
4.2.2 Where court will order further reasons 253
4.2.3 Award appealed on ground that the arbitrator failed to state reasons in sufficient detail 258
4.3 Consent 259
4.3.1 Ensure that terms of settlement in consent award are within arbitrator’s jurisdiction 259
Appendix "A"—Typical Consent Award 263
4.3.2 Arbitrator requested to countersign consent award the terms of which caused him anxiety 265
4.3.3 Arbitrator receives terms of settlement which appear to be ambiguous 267
4.3.4 Disagreement as to terms of settlement 269
4.3.5 Disagreement between the parties as to whether the dispute has been settled 270
4.4 Enforcement 270
4.4.1 Following an award in favour of the claimant the respondent goes to ground 270
4.4.2 Where award unenforceable without post dispute agreement with "consumer" 280
4.4.3 Enforcement of award out of time 284
4.5 Errors—in or on the face of 285
4.5.1 Generally where an arbitrator can correct errors and where he cannot 285
4.5.2 Claimant alleges fact on face of award shows arbitrator to have made an error of computation 291
4.5.3 Arbitrator’s interim award fails to deal with two substantive Points of Claim and awards a sum for liquidated and ascertained damages which, by common agreement, is incorrect 293
4.5.4 Arbitrator admits inadmissible evidence 294
4.5.5 When an error on the face of the award justifies giving leave to appeal 295
4.5.6 Power of the arbitrator to correct error in award caused through misunderstanding over offer to settle 296
4.5.7 Arbitrator erroneously double-counted an item in making award 298
Appendix "A"—Typical Corrective notice 300
4.6 Example of 301
4.6.1 What form should the award take? 301
4.6.2 Arbitrator’s award on disregarding tenant’s improvements in rent review 305
4.7 Interim 309
4.7.1 Power to make interim award 309
4.7.2 Application for interim award in respect of costs of interlocutory proceedings 314
4.7.3 Award "Final Save as to Taxation of Costs" 317
4.7.4 When an arbitrator should not have published an Interim Award 318
4.7.5 Where an interim award may not be Final 320
4.8 Reasoned 322
4.8.1 What is a reasoned award and when should it be given? 322
4.8.2 The arbitrator’s approach to writing a reasoned award 326
4.8.3 Unrepresented party not clear whether they want reasons or not 330
4.8.4 In a pre-AA ’96 Act reference an unrepresented party requests reasons after award is published 333
4.8.5 Party requests retrospective reasons after award 335
4.8.6 Request for reasons, not particularised 336
4.8.7 Request for "open" reasons 337
4.8.8 Where an arbitrator fails to give further reasons even though ordered to do so by the court 338
4.8.9 Extent to which reasons should be given for factual findings in a rent review dispute 339
4.8.10 When parties do not require a reasoned award 340
Appendix "A"—Typical Agreement to dispense with reasons—s.52(1) 343
4.9 Remitted 343
4.9.1 Award remitted following procedural mishap 343
4.9.2 Power of the arbitrator on remission of award 345
4.9.3 Is the court’s jurisdiction to remit award under s.22 AA ’50 (s.68(3) AA’96) unlimited? 346
4.10 Specific performance 349
4.10.1 Arbitrator requested to award specific performance 349
4.11 Timing of 351
4.11.1 Arbitrator’s award in danger of being published after statutory time limit 351
4.11.2 Where an arbitrator takes an inordinate time to make his award following the conclusion of the hearing 352
4.12 Weighing the evidence 355
4.12.1 How to weight the evidence when drafting an award 355
5 CAUSE OF ACTION 363
5.1 Accrual of 363
5.1.1 Dispute between parties concerning accrual of cause of action 363
5.2 Replaced by award 366
5.2.1 When the cause of action is widened after reference and subsequently replaced by award 366
6 CLAIM DEFENCE AND COUNTERCLAIM 373
6.1 Claim—hopeless 373
6.1.1 Points of claim indicate a hopeless case 373
6.1.2 Claimant submits what may be a spurious claim 376
6.2 Defence—hopeless 377
6.2.1 It becomes apparent at preliminary meeting that respondent has very poor defence 377
6.3 Counterclaim—right to mount 380
6.3.1 Impoverished respondent seeks to mount counterclaim 380
7 COMMON LAW ARBITRATIONS 383
7.1 Common Law Arbitrations 383
7.1.1 Arbitration clause incorporated by reference averred to be invalid 383
7.1.2 Arbitrator requested to make a peremptory order 385
7.1.3 One party seeks to revoke the arbitrator’s appointment 387
8 CONTRACT 389
8.1 Is there a written? 389
8.1.1 Doubt raised as to whether a written contract exists or not 389
Appendix "A"—Typical "ad hoc" written arbitration agreement 391
8.2 Existence of 392
8.2.1 Dispute as to the existence of a contract 392
8.3 Not signed 394
8.3.1 Work executed under contract not signed 394
8.4 Wrong, cited in pleadings 395
8.4.1 Appointment made under one contract but Points of Claim refer to a different contract 395
9 COSTS 397
9.1 Generally 397
9.1.1 Award does not cover costs 397
9.1.2 Arbitrator must act judicially in deciding costs 398
9.1.3 Where one party alleges that the arbitrator has not excercised his discretion judicially in dealing with costs 400
9.1.4 Parties fail to address the arbitrator on costs before close of hearing 401
9.1.5 Who should get costs if a Point of Claim is withdrawn before hearing commences? 402
9.2 Power to deal with 403
9.2.1 Where does the arbitrator’s power come from? 403
9.2.2 Parties request arbitrator to give an informal indication on costs 405
9.2.3 Where one party wishes to defer determination of costs 406
9.3 What costs? 407
9.3.1 Costs of the reference and costs of the award 407
9.3.2 How to deal with court costs in arbitration 409
9.3.3 Can an arbitrator deal with the court costs of determining a preliminary point of law 410
9.3.4 Application for costs of matters pleaded and subsequently admitted 411
9.4 Follow the event 413
9.4.1 What is the event? 413
9.4.2 Identity of the successful party 416
9.5 Unusual award as to 419
9.5.1 When the arbitrator is minded to depart from the usual rule of "costs follow the event" 419
9.5.2 Claimant awarded part of claim but directed to bear own costs and pay substantial element of the respondent’s costs. 421
9.5.3 When costs do not "follow the event" 424
9.6 Interlocutory directions 426
9.6.1 Generally 426
9.6.2 Why an arbitrator should not link a cost order to the right to serve a pleading 429
9.6.3 What happens to interlocutory costs orders when an award is appealed? 434
9.6.4 When interlocutory costs are paid in any event by the party who is subsequently successful in the action and is awarded costs 435
9.7 Costs—of a lay representative 437
9.7.1 Power to award costs of party where represented by a non-practising lawyer or other unqualified person 437
9.8 Agreement between the parties as to costs 440
9.8.1 Whether an agreement between the parties that they bear their own costs is valid 440
9.8.2 Claimant who accepts the respondent’s offer to settle in the terms of an agreed settlement subsequently applies to the arbitrator for an order for costs 443
9.8.3 Parties agree settlement terms but fail to include arbitrator’s fee 444
9.9 Where there is a counterclaim 445
9.9.1 What now is the event? 445
9.9.2 Costs where the claimant wins the claim but loses the counterclaim 447
9.10 Where there are offers to settle 448
9.10.1 The effect of a "sealed offer" on costs 448
9.10.2 Rent review costs, close Calderbank offers, discretion acting judicially 450
9.10.3 The effect of a change of pleadings upon an offer to settle 456
9.10.4 The reasonableness of refusing an offer in a multi-party action 458
9.10.5 Offers where there is a claim and a counterclaim 460
9.10.6 Where there is an offer and a counter-offer 461
9.10.7 Relevance of offer, counter-offer and withdrawal of offer in exercising discretion as to costs 462
9.10.8 Where doubt exists over the event for which both a sealed and an "open" offer received 464
9.11 Applications to court 466
9.11.1 How binding is a party’s standard terms to limit his costs? 466
9.11.2 The arbitrator fails to make an award as to costs 467
9.11.3 Appeal against an unusual award as to costs 469
9.11.4 How the court can assist where one party claims that the arbitrator’s fees appear to be excessive 470
9.11.5 Arbitrator refuses to deliver award until fees are paid 473
9.12 Security for the parties’ costs 474
9.12.1 Power of arbitrator to order security for costs 474
Appendix "A"—Typical "ad hoc" Arbitration Agreement 481
9.12.2 What factors should an arbitrator take into account when deciding whether or not to exercise his discretion to order security for a party’s costs? 482
9.12.3 Security for costs in a "documents only" arbitration 488
9.12.4 Security for costs under rules 489
9.12.5 The procedure the arbitrator should follow in dealing with security for parties’ costs 491
Appendix "A"—Typical direction for procedure for dealing with security for costs application 494
9.12.6 The claimant fails to comply with the arbitrator’s direction for affidavit evidence 496
9.12.7 The criteria the arbitrator should apply in deciding whether to order security and, if so, how much and in what form? 497
Appendix "A"—Typical direction ordering security for costs 509
9.12.8 The respondent makes an application to increase security previously ordered 511
Appendix "A"—Typical direction ordering an increase in security for costs previously awarded 513
9.12.9 How to deal with a security for costs application where either party could be the claimaint 514
9.12.10 Can an arbitrator consider sealed offers when considering a security for costs application? 515
9.12.11 Where a party fails to comply with an arbitrator’s order for security 515
9.12.12 When the costs of a security for costs application might not "follow the event" 517
9.12.13 What to do with money put up as security for costs 518
9.13 Recoverable costs 519
9.13.1 Arbitrator asked to exercise power to cap costs 519
Appendix "A"—Typical order for directions for limiting the parties’ recoverable costs—s.65 AA ’96 527
9.13.2 An arbitrator decides to exercise his discretion to tax the parties’ costs 528
9.13.3 Parties cannot agree on the form of Bill for arbitrator’s settlement of costs 530
Appendix "A"—Typical direction for Settlement of Costs 532
9.13.4 Procedure to follow where arbitrator to tax the parties’ costs 534
9.13.5 Procedure to follow where arbitrator is to determine the parties’ recoverable costs 544
10 DAMAGES 553
10.1 Assessment of 553
10.1.1 Generally 553
10.1.2 How to decide when a party is liable for damages 557
Appendix "A"—Flow chart showing how to analyse a Point of Claim or counterclaim 561
10.1.3 Where damages assessed on same basis in contract as in tort 562
10.1.4 Damages claimed for defective work executed some years before 567
10.1.5 Measure of damages where there is a third party settlement 568
10.2 Quantum of 569
10.2.1 Liquidated damages linked to sectional completion and whether notice is a condition precedent to deducting them 569
10.2.2 When employer wrongfully repudiates contract 577
10.2.3 Loss and expense claims clarified 580
10.3 For distress and inconvenience 586
10.3.1 Power to award general damages in building cases 586
11 DECLARATORY RELIEF 595
11.1 Arbitrator’s power to award 595
11.1.1 Arbitrator’s power to make a declaratory award 595
12 DIRECTIONS 599
12.1 General 599
12.1.1 The arbitrator’s power to give directions 599
12.1.2 Typical direction concerning the preliminary meeting 601
Appendix "A"—Typical letter to parties re appointment and checklist for preliminary meeting 602
Appendix "B"—Typical Order for directions confirming date,time and venue for Preliminary Meeting 606
Appendix "C"—Typical agenda for a preliminary meeting under JCT Arbi-tration Rules 607
Appendix "D"—Typical Direction following preliminary meeting—JCT Arbi-tration Rules 616
12.2 Interlocutory 624
12.2.1 Extending time for service of party’s statement 624
Appendix "A"—Direction extending time for service of statement 627
12.2.2 Amendment of a party’s statement 628
Appendix "A"—Direction consenting to request to amend pleadings 629
12.2.3 Notice under the Civil Evidence Act 1995 630
Appendix "A"—Typical direction covering notice under the Civil Evidence Act 1995 632
12.2.4 When a pre-hearing review should be held 633
Appendix "A"—Typical Direction convening a pre-hearing review meeting 635
Appendix "B"—Typical agenda for pre-hearing review meeting 636
Appendix "C"—Typical Direction following pre-hearing review meeting—post AA ’96 638
12.2.5 Arbitrator not bound to give reasons for interlocutory directions and court cannot review or revise them 641
12.2.6 Arbitrator not obliged to give reason for interlocutory decisions but does so voluntarily 642
12.2.7 Loss and expense claim in construction contract—when and to what extent should the arbitrator order fully particularised details of his claim? 644
12.3 Arbitrator’s, non-compliance with 647
12.3.1 Generally 647
12.3.2 Failure to serve claim as directed 652
Appendix "A"—Peremptory Order following failure to serve a statement of case 654
12.3.3 Failure to serve Defence as directed 655
12.3.4 Failure by a party to reply to a request for Further and Better Particulars 655
Appendix "A"—Typical Direction following failure to comply with a request for Further and Better Particulars 657
12.3.5 Failure of party to comply with Direction for Specific Discovery 659
Appendix "A"—Typical Peremptory Order for Specific Discovery 661
12.3.6 Unless Order re failure to serve witness statements 662
Appendix "A"—Typical Unless Order following failure to serve witness statements 663
12.3.7 Respondent refuses to waste his time defending a sham claim 664
Appendix "A"—Typical Direction warning of possible ex parte hearing 666
12.4 Amendment of 668
12.4.1 Application to amend an arbitrators direction which was made without prior discussion with the parties 668
13 DOCUMENTS 669
13.1 Authenticity distinguished from admissibility 669
13.1.1 How to determine authenticity of possibly admissible evidence 669
13.2 Discovery of 670
13.2.1 Restricted discovery during determination of preliminary issue 670
13.2.2 Request by parties for early discovery 671
13.2.3 In a large and complex case claimant requested the arbitrator to order the respondent to swear an affidavit that all relevant papers had been discovered 672
13.2.4 Unreasonably wide request for discovery 674
13.2.5 Arbitrator takes independent legal advice on order for discoverY 675
Appendix "A"—Typical Order for Directions for Discovery of Documents 677
13.2.6 Specific Discovery 678
Appendix "A"—Typical Order for Directions for Specific Discovery 681
13.2.7 Very late request for further discovery 683
13.2.8 Application for discovery during the course of the hearing 684
13.2.9 Court no longer has power to order discovery in arbitration 685
13.2.10 How far does discovery need to go on computer disks? 686
13.2.11 The extent to which discovery should be ordered by the arbitrator 687
13.2.12 The restriction on documents obtained in discovery 688
13.2.13 Does a party have to disclose all copies of a particular document following an order for discovery 689
13.3 Inspection of 690
13.3.1 Documents destroyed, therefore not available for inspection 690
13.4 Only 691
13.4.1 Arbitrator requires further submissions in order to determine the dispute 691
13.4.2 Privileged document accidentally included and essential document omitted 691
13.4.3 A brief preliminary meeting with the parties in "documents only" arbitration sometimes bears fruit 693
Appendix "A"—Typical request for written answers to questions 696
13.4.4 Whether an arbitrator should admit a further submission after close of Pleadings? 697
13.4.5 How to react to a third party’s attempted interference with a reference 697
13.4.6 Where documents contain a claim which arises following the application to refer 699
13.4.7 Where burden of proof can shift to the respondent 700
13.4.8 Where a similar fact evidence might be admissible in a "documents only" arbitration 702
13.4.9 Following an award the unrepresented claimant accuses the arbitrator of failing to note crucial evidence 703
13.4.10 Should an arbitrator order a claimant to provide security for costs in a "documents only" reference? 705
13.4.11 When an arbitrator had to seek counsel’s opinion on how far he could go in seeking clarification of a party’s statement in a "documents only" arbitration 705
13.4.12 Where it is desirable, or necessary, to switch from a "documents only" procedure to an oral hearing 711
13.4.13 Model Award 711
Appendix "A" Model Award 713
13.5 Production of 717
13.5.1 Introduction at hearing of documents not previously referred to 717
13.6 Reading of 718
13.6.1 Extent to which the arbitrator should read the hearing bundle 718
13.7 Statements in 719
13.7.1 Arbitrator received confidential document from claimant complaining of respondent 719
14 EVIDENCE 721
14.1 Admissibility of 721
14.1.1 Generally—Arbitrator must admit all admissible evidence 721
14.1.2 Is evidence from another unrelated dispute admissible in the subject dispute? 724
14.1.3 Where the maker of a statement which a party wishes to put in evidence has to be called, even if no formal notice given by the opposing party 728
14.1.4 Power of arbitrator to limit admissible evidence 730
14.1.5 Admissibility of unsigned witness statements where party evinces an intention of taking no further part in the proceedings 732
14.1.6 Admissibility of documents inadvertently missed in discovery 734
14.1.7 The effect of s.34(2)(f) AA ’96 (Evidence—admissibility, relevance and weight) in rent review arbitrations 735
14.2 Estoppel 737
14.2.1 Cause of action estoppel defence may not always apply 737
14.2.2 Whether issue estoppel can be successfully pleaded 738
14.2.3 A party seeks to estop the other party from re-opening, with the arbitrator, an issue on which he asserts previous agreement was reached 741
14.3 Expert 742
14.3.1 Generally 742
14.3.2 One party appoints an expert, the other party fails to do so 756
14.3.3 Expert appointed by the arbitrator 759
Appendix "A"—Standard direction on expert evidence 763
14.3.4 Using a second expert witness 764
14.3.5 Admissibility of expert evidence 765
14.3.6 Whether the arbitrator has power to order the disclosure of an expert’s report 767
14.3.7 Expert witness dies just before the hearing 770
14.3.8 Distinguishing between evidence of witnesses of fact and expert witnesses 772
14.3.9 Expert evidence in complete contradiction 773
14.3.10 Expert witnesses unable to agree on any matters of fact in dispute 776
14.3.11 Neither expert’s evidence preferred by the arbitrator 779
14.3.12 Party prompts own expert while giving evidence 780
14.3.13 Problem of hearing expert evidence on lengthy Scott Schedule 781
14.3.14 The respondent makes an application during the hearing to have his key witness of fact called as an expert 782
14.3.15 An ex-employee wishes to appear as an expert witness for the party who previously employed him 784
14.3.16 Expert did not produce his own backup material 785
14.3.17 Expert deviates from his report and argues merits of his party’s case 787
14.3.18 Expert omits to deal with material facts 789
14.3.19 Determination—taxation of incompetent expert’s costs 790
14.3.20 Expert is clearly partisan 791
14.3.21 Expert evidence contradicts evidence that the expert gave in a previous arbitration 795
14.3.22 An expert includes evidence in his report from another expert 796
14.3.23 The tribunal appointed expert 798
Appendix "A"—Typical alternative agenda items for the option of a tribunal appointed expert 802
14.4 Fresh 803
14.4.1 Arbitrator’s failure to consider fresh evidence before publishing award in "documents only" reference 803
14.4.2 Party attempts to admit fresh evidence after conclusion of hearing but before award 805
14.4.3 Party submits fresh evidence to the arbitrator after publication of his nal award 806
14.4.4 Party no opportunity of making submission to arbitrator on fresh evidence after hearing the facts 807
14.4.5 After granting an adjournment request to the claimant to seek legal advice on a fresh point, the claimant fails to make any further written submissions 809
14.5 Hearing 810
14.5.1 A key witness who cannot be available for the hearing seeks to give evidence to the arbitrator in the absence of the other party 810
14.5.2 Arbitrator receives evidence in absence of both parties 812
14.5.3 Arbitrator determines dispute without hearing either party 812
14.5.4 The admissibility of documents into an "ex parte" hearing not previously discovered 813
14.5.5 Witness’s evidence varies from his written proof 814
14.6 Hearsay 815
14.6.1 Generally, What is hearsay evidence? 815
14.6.2 Hearsay evidence is now, prima facie, admissible unless parties agree that the strict rules of evidence are to apply 817
14.6.3 Claimant requests consent to refer to a letter rather than calling the writer 821
14.7 Privilege 821
14.7.1 A claim of legal professional privilege 821
14.7.2 Litigation privilege and non-practising legally qualified advisers 823
14.7.3 What "privilege" can be claimed by non-legally qualified advisers? 826
14.7.4 Privilege in rent review arbitrations 829
14.7.5 Privileged material referred to at a preliminary meeting 832
14.7.6 Refusal to disclose confidential documents 833
14.7.7 Argument adduced at hearing from a privileged document 835
14.7.8 Where a "without prejudice" offer may not be privileged 836
14.7.9 Deliberate disclosure of a "without prejudice" letter to the arbitrator? 837
14.7.10 Public interest claimed as privilege 841
14.8 Proofs of 844
14.8.1 Party’s counsel objects to exchange of proofs of evidence 844
14.8.2 How exchanged statements of witnesses of fact may be used at a hearing 845
14.8.3 Parties ordered to exchange witnesses’ proofs of evidence； one party fails to do so 847
Appendix "A"—Unless Order—Order for Directions 849
14.8.4 Parties ordered to exchange witnesses’ proofs of evidence.One party fails to do so, even after threat of debarment 850
Appendix "A"—Unless Order—Order for Directions No 19 853
14.9 Relevant 854
14.9.1 Distinction between relevance and weight 854
14.9.2 Claimant fails to deal with what the arbitrator considers is relevant point 855
14.9.3 Counsel questions relevance of tenant’s accounts in rent review dispute 856
14.10 Similar fact 859
14.10.1 Application for discovery of similar fact evidence 859
15 EXPERT DETERMINATION 863
15.1 Expert determination 863
1.1 Whether person is appointed as an arbitrator or an independent expert? 863
1.2 When can a determination by an expert be successfully challenged? 865
1.3 Independent expert or arbitrator? 867
1.4 The independent expert not bound to act judicially 869
1.5 Determination in the absence of a dispute 871
1.6 Can an independent expert unilaterally decide to determine a preliminary issue? 872
1.7 Should an independent expert give reasons for his determination? 872
16 FEES 875
16.1 Generally 875
16.1.1 Generally 875
Appendix "A"—Arbitrator’s Terms 888
Appendix "B"—Time Sheet 890
Appendix "B"—Expense Sheet 891
Appendix "C"—Typical Fee Statement 892
16.2 Non agreement of 895
16.2.1 One party agrees to arbitrator’s fees, the other does not 895
16.2.2 Neither party responds to arbitrator’s request to sign terms； the arbitrator subsequently seeks a commitment fee 897
16.2.3 Party considers arbitrator’s fees too high 899
16.2.4 Fees—How does the party with liability to pay the Arbitrator’s Fees challenge the amount of such fees when they have already been paid by the other party? 901
16.3 Non payment of 903
16.3.1 Parties agree arbitrator’s terms at preliminary meeting but fail to return them signed.They also fail to pay interim fees subsequently requested 903
16.3.2 Cheque for interim fees is not honoured 911
16.3.3 A hearing becomes protracted and runs considerably over the time set aside by the arbitrator； consequently he finds himself considerably exposed for fees outstanding which he may not recover for several months 912
16.3.4 Payment of arbitrator’s out-of-pocket expenses 915
16.3.5 One party offers to pay half of the arbitrator’s fees only on collection of award 916
16.3.6 Arbitrator publishes award and parties do not collect 918
16.3.7 Parties settle, but make no agreement concerning the arbitrator’s fees and neither accepts liability for them 919
Appendix "A"—Typical points of claim 923
16.4 Arbitrators, security for 927
16.4.1 Generally 927
16.4.2 Failure by one or both parties to comply with a direction of the arbitrator to provide security for his fees and expenses 931
Appendix "A"—Typical Direction for procedure for dealing with the arbi-trator’s security for costs 933
Appendix "B"—Typical Peremptory Order following failure to provide security when directed 935
16.4.3 What to do with a substantial sum lodged with the arbitrator as security for his costs 936
16.4.4 Arbitrator, anticipating ex parte hearing, sets level of security for his fees and expenses.Respondent unexpectedly turns up.Claimant insists that respondent be directed to pay a moiety of the security 937
16.4.5 Hearing adjourned on application of respondent.Under circumstances,claimant asks arbitrator to direct that respondent put up some security for arbitrator’s fees and expenses—all previously provided by the claimant.Arbitrator so directs.Respondent does not comply 938
16.4.6 Security for arbitrator’s fees after company put into liquidation 939
17 HEARING 941
17.1 Adjournment of 941
17.1.1 Parties jointly request adjournment of hearing 941
17.1.2 A hearing is set and one or both parties fail to turn up 942
17.1.3 Adjournment requested to consider supplementary expert’s report 943
17.2 Agreed bundle 944
17.2.1 No agreed bundle delivered to the arbitrator 944
17.2.2 Parties fail to prepare agreed bundle and produce their own 946
17.3 Evidence 947
17.3.1 When relaxation of strict rules of evidence is permissible 947
17.3.2 Counsel constantly objects to leading questions 949
17.4 Interventions 950
17.4.1 Arbitrator stops counsel after long-winded submission 950
17.4.2 When it is permissible for an arbitrator to interrupt counsel 952
17.4.3 Arbitrator interrupts counsel indicating his acceptance of point being made 954
17.5 Order of 956
17.5.1 Respondent seeks to interpose his expert earlier into the hearing 956
17.6 Party’s right to be present throughout 957
17.6.1 Respondent consistently rude to the arbitrator 957
17.6.2 Arbitrator excludes objectionable party 959
17.7 Postponement of 960
17.7.1 Postponement requested due to non-availability of Counsel 960
17.7.2 Respondent wishes to postpone start of hearing 961
17.8 Presence of a stranger 963
17.8.1 Attendance of person not involved in dispute 963
17.8.2 Confidentiality of arbitral proceedings 964
17.9 Right to have 968
17.9.1 One party wants to have oral hearing the other wants "documents only" 968
17.10 Speed of progress at 969
17.10.1 Arbitrator controls speed of progress at hearing 969
17.11 Unequal representation at 970
17.11.1 Unequal representation at hearing 970
18 INJUNCTION 973
18.1 Arbitrator’s power to grant 973
18.1.1 Employer requests the arbitrator to grant an interim injunction against an obstructive contractor 973
18.1.2 Power of the court 975
19 INSPECTION 977
19.1 Arbitrator’s power to order 977
19.1.1 Whether arbitrator has power to order inspection of property which is the subject of the reference 977
19.1.2 Arbitrator wishes to inspect a model of the property which is the subject of the reference 978
19.1.3 When an arbitrator should inspect the property subject of the dispute 980
19.2 Difficulties arising from 982
19.2.1 Requirement to inspect frustrated by claimant 982
19.2.2 One party requests arbitrator to inspect property： the other party objects so the arbitrator offers to use the visit to take evidence 983
19.2.3 Respondent ignores all arbitrator’s directions and subsequently denies access for arbitrator’s inspection 984
19.3 Rights of parties at 985
19.3.1 The rights of parties at an inspection compared with rights at the hearing itself 985
20 INTEREST 989
20.1 General and special damages 989
20.1.1 Whether the arbitrator has power to award interest by way of general damages for late payment of debt 989
20.2 Special damages 997
20.2.1 Interest incurred as a direct loss and/or expense or as special damages 997
20.3 Discretion under AA ’96 999
20.3.1 How s.49 AA ’96 has changed the arbitrator’s discretion to award interest under s.19A AA ’50 999
20.3.2 Whether there is a contrict between the arbitrator’s discretion under s.49 AA ’96 and a contractual right to interest? 1005
20.4 Finance charges 1006
20.4.1 Whether finance charges are a recoverable head of damage in a claim for direct loss and/or expense and whether such can be validly claimed on a compound interest basis 1006
20.5 Sums due and unpaid, on 1009
20.5.1 Whether the arbitrator has power to award interest on sums paid late but before the arbitration commences 1009
20.5.2 Whether the arbitrator has power to award interest on sums found by him to be under-certified 1010
20.5.3 The distinction between mere counterclaims and counterclaims which also constitute defences of abatement or set off 1013
20.6 Not pleaded 1016
20.6.1 Neither party claims interest 1016
20.7 Where there is an offer to settle 1017
20.7.1 Where interest can have a significant effect 1017
21 SERIOUS IRREGULARITY 1019
21.1 Serious irregularity—misconduct 1019
21.1.1 Generally 1019
21.1.2 Thomasina researches cases of "Misconduct" 1025
21.1.3 Cases of "Misconduct" in Construction Cases 1030
21.1.4 Cases of "Misconduct" in Rent Review Cases 1039
21.2 Serious irregularity—failure by the tribunal to comply with s.33 and resulting in s.24 sanctions 1042
21.2.1 Failure to disclose documents to both sides； admissibility of evidence 1042
21.2.2 Whether to refuse adjournment could be said to be not properly conducting the proceedings 1046
21.2.3 Arbitrator comes to view contrary to evidence adduced before him 1047
21.2.4 Arbitrator fails to deal with interest； is this a serious irregularity? 1048
21.2.5 When an injudicious remark of the arbitrator can amount to misconduct 1049
21.3 Serious irregularity—challenging the award 1050
21.3.1 Failure by the tribunal to comply with s.33 (general duty of tribunal) (s.68(2)(a)) 1050
21.3.2 Arbitrator exceeds his powers by giving order for general discovery when the rules permit only specific discovery (s.68(2)(b)) 1056
21.3.3 Failure by the arbitrator to conduct the proceedings in accordance with the procedure agreed by the parties (s.68(2)(c)) 1057
21.3.4 Failure by the tribunal to deal with all the issues that were put to it (s.68(2)(d)) 1059
21.3.5 Uncertainty or ambiguity as to the effect of the award (s.68(2)(f)) 1060
21.3.6 An award is obtained by fraud (s.68(2)(g)) 1061
21.3.7 An award is made without being dated or stating the seat of the arbitration in contravention to s.68(2)(h) AA ’96 1062
21.3.8 An arbitrator admits to an irregularity in the award (s.68(2)(i) AA ’96) 1062
21.4 Misconduct—immunity from suit 1063
21.4.1 Of the arbitrator 1063
21.4.2 Of the Appointing Body 1067
22 OATH 1073
22.1 Taking of 1073
22.1.1 Difficulty arises at hearing over form of sacred book 1073
22.1.2 Witness privately prompted by his advocate whilst still under oath 1075
22.1.3 Witness clearly lying under oath 1076
23 OFFER TO SETTLE 1079
23.1 Open 1079
23.1.1 Arbitrator sent a copy of an "open" offer 1079
23.1.2 Should an open offer attract interest? 1080
23.2 Sealed 1080
23.2.1 Arbitrator asks parties if a sealed offer has been made 1080
23.2.2 Existence of "secret" offer disclosed to arbitrator 1081
23.2.3 Failure to disclose the existence of a sealed offer before award 1083
23.3 Treatment of costs when 1085
23.3.1 When the sealed offer exceeds the net amount awarded 1085
23.4 Without prejudice 1087
23.4.1 Disclosure of "without prejudice" offer 1087
23.4.2 Arbitrator sent a copy of a "without prejudice" offer 1089
24 PARTIES 1091
24.1 Assignment of claim 1091
24.1.1 Receiver of claimant company assigns to a third party right to arbitrate a dispute 1091
24.2 Bankruptcy of 1092
24.2.1 Party is put into bankruptcy during arbitration 1092
24.3 Death of 1094
24.3.1 Party dies during reference 1094
24.4 Disputes as to 1098
24.4.1 When the claimant believes that there are joint respondents and the respondent avers that there is a third party to the contract which the claimant denies 1098
24.5 Illness of 1102
24.5.1 Party requests indefinite deferment due to illness 1102
24.6 Liquidation of 1103
24.6.1 Power of arbitrator to proceed when party put into compulsory liquidation 1103
24.6.2 Party in liquidation； original assignor’s right to arbitration 1104
24.6.3 Claimant goes into creditors’ voluntary liquidation during reference 1105
24.7 Loss of confidence in arbitrator 1107
24.7.1 During a hearing a party loses confidence in ability of the arbitrator to grasp satisfactorily the problems being arbitrated 1107
24.8 Personal contacts with 1108
24.8.1 Arbitrator found to have regular contact with one party 1108
24.9 Receivership, in 1110
24.9.1 Party put into receivership during arbitration 1110
24.10 Reluctant respondent 1111
24.10.1 Respondent fails to acknowledge arbitrator’s letters 1111
24.10.2 Respondent persistently fails to comply with arbitrator’s directions 1115
24.10.3 Respondent engaged in delaying tactics 1115
24.11 In repudiatory breach 1117
24.11.1 When a respondent seeks a declaration that the claimant has repudi-ated the Arbitration Agreement 1117
24.12 Impecuniosity of 1119
24.12.1 The respondent (counter-claimant) admits to being totally out of funds 1119
24.13 Role reversal 1120
24.13.1 Respondent becomes claimant 1120
24.13.2 Tenant avers that he, not the landlord, should be the claimant 1121
24.14 Written Agreement, of 1121
24.14.1 One party attempts to resile from an earlier agreement 1121
25 POINTS OF LAW 1125
25.1 Preliminary issue on 1125
25.1.1 Preliminary issue of point of law 1125
25.1.2 Party asks arbitrator to apply to the High Court to determine point of law 1130
25.1.3 Arbitrator faces difficult legal argument 1131
25.1.4 Where an arbitrator may be aware of legal authority not cited by either side 1133
25.1.5 Duty of counsel when a difficult point of law arises 1133
25.1.6 Where no authority cited in support of legal contentions 1135
25.1.7 Landlord avers a typing error in the notice of review, which the tenant has signed and returned 1136
25.1.8 Differing interpretations arise out of a rent review clause 1138
25.1.9 Arbitrator to assess level of rent on review for full repairing and insuring lease subject to schedule of conditions left blank 1139
26 PLEADINGS 1141
26.1 Statements of claim and defence 1141
26.1.1 Formal pleadings or statement of case? 1141
26.2 Amendment of 1146
26.2.1 Generally 1146
Appendix "A"—Typical Order for Directions granting an application to amend Pleadings 1150
26.2.2 Late amendment of pleading necessary to include counterclaim 1152
26.2.3 Claimant requests amendment of pleadings during hearing 1153
26.2.4 Late request to cover continuing loss of pleaded item 1155
26.3 Fraud in 1157
26.3.1 Suggestion of fraud in pleadings 1157
26.4 Further and better particulars 1158
26.4.1 Generally 1158
Appendix "A"—Typical requests for Further and Better Particulars of defence and counterclaim 1162
Appendix "B"—Unless order in respect of failure to reply to Further and Better Particulars 1164
26.4.2 How to deal with requests for Particulars to which the asking party declines to reply 1166
26.5 Late service of 1167
26.5.1 Extending the timetable for service of pleadings 1167
26.6 Not properly particularised 1168
26.6.1 Claim in pleadings in "global" terms 1168
26.6.2 Arbitrator directs how inadequate pleadings should be remedied 1173
26.6.3 Questions put to the parties 1175
Appendix "A"—Typical Order re Notice to Admit Facts 1179
Appendix "B"—Re typical request for Interrogatories (Questions from the arbitrator) 1180
26.7 Re-service of 1181
26.7.1 Party’s newly appointed solicitor requests consent to Re-Serve Defence and Counterclaim previously inadequately served by lay representative 1181
Appendix "A"—Typical Direction granting the respondents application to re-serve its defence 1184
Appendix "B"—Typical Direction seven-day notice to respondent re failure to serve defence 1186
26.8 Without prejudice 1187
26.8.1 Pleadings alleged to be "without prejudice" 1187
27 PROCEEDINGS 1189
27.1 Abandonment of reference 1189
27.1.1 Absentee respondent, working and resident overseas, refuses to appoint representative.Claimant elects to start arbitration proceedings and subsequently claims abandonment 1189
27.2 Conduct of 1191
27.2.1 How the Arbitration Act 1996 has changed the approach of the parties and the arbitrator 1191
27.2.2 The parties rule—O.K.！ 1197
27.2.3 Parties actively co-operate with the arbitrator in devising a cost-effective procedure to resolve this dispute 1206
27.2.4 Consideration of the most cost effective procedure 1208
27.2.5 The preliminary meeting and beyond 1216
27.2.6 Parties disagree on form of proceedings 1220
27.2.7 Requirement to follow agreed procedure 1223
27.2.8 Doing something contrary to the parties’ expectations in a written representations rent review procedure 1224
Appendix "A"—Typical opening letter to the parties 1226
Appendix "B"—Typical follow up letter 1228
Appendix "C"—Typical preliminary meeting agenda 1229
Appendix "D"—Order for directions on documents only with or without a preliminary meeting 1231
27.2.9 Wot, no preliminary meeting? 1234
Appendix "A"—Typical letter to lay parties where arbitrator decides to dispense with preliminary meeting 1236
Appendix "A"—List of matters which need to be covered by my directions to the parties 1239
Appendix "B"—Typical abbreviated terms for a simple dispute with lay parties 1240
27.3 Equitable determinations 1242
27.3.1 Parties consider effect of adopting an equity clause 1242
27.4 Exclusion agreements, entering into 1248
27.4.1 Party queries effect of entering into an exclusion agreement 1248
Appendix "A"—Typical Agreement to exclude the jurisdiction of the court ss.45(1) and 69(1) 1252
27.4.2 Party asks if exclusion agreement applies to interim award 1253
27.5 "Ex parte" 1254
27.5.1 Generally—when may an arbitrator proceed "ex parte" and what principles should he observe? 1254
27.5.2 Respondent fails to communicate with arbitrator following withdrawal of instructions from solicitor 1258
27.5.3 The reluctant respondent’s bluff is called 1260
27.5.4 The respondent appears, without warning, on the first day of the hearing 1262
27.5.5 The respondent says he will not attend the hearing due to insufficient time to prepare 1263
27.5.6 Respondent fails to appear at the hearing.The claimant attempts to introduce evidence in his absence 1265
27.5.7 Dealing with a counterclaim and costs at an "ex parte" hearing 1266
27.6 Proceedings—multi-party arbitrations 1267
27.6.1 The employer seeks to commence an arbitration against a nominated subcontractor and against the main contractor in the same action 1267
27.6.2 Application made to consolidate two arbitrations 1268
27.6.3 The arbitrator’s power to consolidate or order concurrent hearings in related disputes 1274
27.6.4 What alteration is necessary to normal procedures when joinder provisions are invoked? 1281
Appendix "A"—Extract from typical Direction in joinder cases 1284
27.6.5 When a subcontractor with a genuine dispute may find himself involved in an arbitration under the main contract and have to wait for years to receive his just entitlement 1286
27.6.6 Difficulties and costs where separate arbitration clauses in related contacts 1287
27.7 Stay of, overlap with litigation 1288
27.7.1 Limitations of arbitrator’s consideration of overlapping issues when arbitration and litigation proceed in parallel 1288
27.7.2 Concurrent proceedings—inter-relationship with court proceedings 1292
27.7.3 Whether a court action should be stayed where a writ is issued as a pre-emptive strike before arbitration proceedings can begin? 1296
27.7.4 When a step taken in litigation may justify a stay of arbitration proceedings 1297
27.7.5 Refusal to operate an Arbitration Agreement—can a party go to court? 1298
27.8 Substantive and procedural law 1300
27.8.1 Arbitrator asked to rule on the proper law of the contract and what rules should apply to access to witnesses 1300
28 PROPERTY 1305
28.1 Subject of Reference 1305
28.1.1 Claimant makes application to the arbitrator to release property,retained by the respondent, which is subject of the reference 1305
28.1.2 Respondent threatens to sell goods which are the subject of the reference 1307
29 RECTIFICATION 1311
29.1 Contract, of 1311
29.1.1 Power of arbitrator to deal with rectification of the contract 1311
29.1.2 Power of arbitrator to order damages resulting from rectification of contract 1313
30 REPRESENTATION 1315
30.1 Party in Person, Assistance of 1315
30.1.1 Right of party appearing in person to have assistance of a McKenzie friend 1315
30.1.2 Extent to which the arbitrator assists an unrepresented party 1316
30.2 Poor Quality 1317
30.2.1 Counsel presenting case in incompetent fashion 1317
30.2.2 Parties’ representatives have little or no idea of arbitration procedure 1318
30.3 Legal 1319
30.3.1 "Fit for Counsel" 1319
Appendix "A"—Typical extract from Order for Directions 1323
30.3.2 Solicitor withdraws before the hearing 1324
30.3.3 Counsel appears at hearing without warning 1324
31 SPECIFIC PERFORMANCE 1327
31.1 Interim award for 1327
31.1.1 Claimant seeks order for specific performance from unique specialist contractor 1327
32 SUBMISSIONS 1331
32.1 Closing 1331
32.1.1 Advocate’s closing submissions 1331
32.2 Copied to both sides 1334
32.2.1 Documents received by arbitrator not sent to other side 1334
32.3 Opening 1335
32.3.1 Counsel’s opening submissions 1335
33 VALUE ADDED TAX 1339
33.1 Value added tax 1339
33.1.1 Generally 1339
33.1.2 The VAT position when a party settles 1345
Appendix "A"—Agreed Minutes of Meeting between HM Customs and Excise (VAT Office) and Law Society—23 October 1991 1350
33.1.3 The treatment of VAT and damages and "offers" to settle 1354
34 WITNESSES 1357
34.1 Appearing for both sides 1357
34.1.1 Both parties wish to call same witness 1357
34.2 Compellability to give evidence 1358
34.2.1 Generally 1358
34.2.2 Witness called by claimant refuses to attend hearing.Respondent alleges that this witness is central to his case 1361
34.3 Illness of 1362
34.3.1 Persistent interruptions to hearing through witness’s incapacity 1362
34.4 Leading questions and prompting witness 1363
34.4.1 When leading questions should be allowed and when prompting a witness is unacceptable 1363
34.5 Hostile/objectionable behaviour 1364
34.5.1 When a witness’s behaviour in giving evidence becomes unacceptable 1364
34.6 Order of 1366
34.6.1 Counsel requests that expert be called before witnesses of fact 1366
34.7 Perjury, committed by 1367
34.7.1 Witness clearly lying under oath and solicitors’ duty to ensure the truth of witness statements 1367
34.8 Proof of evidence 1368
34.8.1 Generally 1368
34.9 Question, refusal to answer 1371
34.9.1 Witness who previously agreed to give evidence now refuses to do so 1371
35 APPEALS TO COURT 1373
35.1 Power of court to extend time for beginning arbitral proceedings 1373
35.1.1 Generally 1373
35.2 Determination of preliminary point of jurisdiction 1375
35.2.1 Generally 1375
35.2.2 Challenging an arbitrator’s jurisdiction—ss.32 and 73 AA ’96 1377
35.3 Challenging the award jurisdiction 1378
35.3.1 Generally 1378
35.3.2 Arbitrator awards a longer extension of time than is asked for—s.68(1) and (2) AA ’96 1381
35.4 Determination of preliminary point of law 1382
35.4.1 Generally 1382
35.4.2 Preliminary issue—the arbitrator’s powers—ss.45 and 34 1384
35.5 On point of law 1385
35.5.1 Is the appeal within the time limits set down in the Act? 1385
35.5.2 Where the appeal is out of time 1387
35.5.3 Generally 1390
35.5.4 Appealing on a point of law 1399
35.5.5 Limitations on application to the court—s.70(2)(b) 1402
35.5.6 Parties pre-consent to appeal 1403
35.5.7 The court’s discretion to grant leave to appeal in respect of a question of law not argued before the arbitrator 1405
35.5.8 Party seeks leave to appeal to the Court of Appeal on decision of the High Court 1406
APPENDIX 1—STATUTES 1409
1.1 Arbitration Act 1950 1409
1.2 Arbitration Act 1975 1429
1.3 Arbitration Act 1979 1431
1.4 Arbitration Act 1996 1437
1.5 Civil Evidence Act 1968 1484
1.6 Civil Evidence Act 1972 1490
1.7 Civil Evidence Act 1995 1493
1.8 Agricultural Holdings Act 1986 1505
1.9 Agricultural Tenancies Act 1995 1510
APPENDIX 2—RULES OF THE SUPREME COURT 1997 1513
APPENDIX 3—DISPUTE RESOLUTION 1551
3.1 CIArb Arbitration Rules (1988) 1551
3.2 CIArb Short Form Arbitration Rules 1991 1558
3.3 CIArb Guidelines for Supervised Settlement Procedure (1990 Edition) 1561
3.4 CIArb New Consumer Dispute Resolution Scheme 1565
3.5 CIArb Standard Consumer Arbitration Scheme Guidance Notes for the Parties 1575
3.6 Arbitration Scheme for the Association of British Travel Agents 1579
3.7 Schedule of Administered Schemes 1583
3.8 Guidelines of Good Practice for Arbitrators 1585
3.9 The LMAA Terms (1997) 1588
3.10 The LMAA Small Claims Procedure (1994) 1600
3.11 The LMAA FALCA Rules (1996) (Fast and Low Cost Arbitration) 1604
3.12 FOSFA Rules of Arbitration and Appeal 1990 1609
3.13 GAFTA Arbitration Rules No.125 1616
3.14 Draft ICC Rules 1997 1627
3.15 Draft New LCIA Rules 1997 1638
3.16 The JCT Arbitration Rules (18 July 1988) 1651
3.17 Draft Proposed Amended JCT Rules 1997 1659
3.18 JCT Contracts, Sub-Contracts and Arbitration Rules—Note to Users 1670
3.19 The Royal Institution of Chartered Surveyors： Appointment of arbitrators and independent experts, particularly in commercial property rent review disputes—policy statement on alleged conflicts of interest 1673
3.20 Institution of Civil Engineers’ Arbitration Procedure (1997) 1675
3.21 The Construction Industry Model Arbitration (CIMA) Rules 1686
Index 1705