《ARBITRATION PRACTICE AND PROCEDURE INTERLOCUTORY AND HEARING PROBLEMS 1 SECOND EDITION》求取 ⇩

1 APPOINTMENT1

1.1 Challenge to1

1.1.1 The respondent challenges the qualification of the arbitrator1

1.2 Disqualification for2

1.2.1 Approached by one party2

1.2.2 Called for interview by one party3

1.3 Estoppel4

1.3.1 Party who appoints an arbitrator subsequently estopped from ascer-taining that arbitrator has no authority4

1.3.2 Is a newly appointed solicitor estopped from questioning the arbitrator’s jurisdiction?6

1.4 Invalidity of7

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 meeting7

1.4.2 Appointment letter from nominating body signed by person other than that person named in contract8

1.4.3 Respondent asserts the claimant has not complied with precondition related to arbitrator’s appointment9

1.4.4 Respondent questions validity of appointment12

1.4.5 Party contends appointment invalid as made out of time13

1.4.6 Validity of unilateral reference for the appointment of an arbitrator16

1.4.7 Conditional appointment of arbitrator19

1.4.8 The appointment of an arbitrator must be made in strict compliance with the contract22

1.4.9 Party attempts to nominate third arbitrator23

1.4.10 Whether an appointment is valid where a joinder notice has been served prior to the date of that appointment24

1.5 Non-Acceptance of Terms25

1.5.1 Claimant refuses to accept arbitrator’s terms following appointment25

1.6 Parties’ Failure to Agree27

1.6.1 The dispute clause does not provide how an arbitrator should be appointed and the parties cannot agree27

1.7 Withdrawal/Resignation From28

1.7.1 Arbitrator attempts to withdraw after appointment28

1.7.2 Arbitrator invited to withdraw30

1.8 Wrong Reference33

1.8.1 Appointment letter from nominating body cites incorrect reference to Act33

1.8.2 Arbitrator’s qualifications do not meet specific requirements of arbi-tration agreement35

2 ARBITRATION AGREEMENT39

2.1 Ad hoc submissions39

2.1.1 Reference to arbitration after dispute arises39

2.1.2 Whether the subsequent conduct of the parties amounted to an "ad hoc"arbitration agreement41

2.2 Condition Precedent44

2.2.1 Whether arbitrator’s award is a condition precedent to a cause of action44

2.2.2 Where a dispute has to be referred to engineer’s decision as a condition precedent to arbitration46

2.3 Dispute as to Validity of50

2.3.1 Compliance with contract, prerequisite to trigger written arbitration agreement50

2.3.2 Respondent questions validity of arbitrator’s appointment as architect’s nal certificate had been issued51

2.3.3 Where conclusiveness of architect’s final certificate time bars arbitration53

2.4 Estoppel54

2.4.1 Party asserts other party estopped from proceeding with arbitration54

2.4.2 Whether a party is estopped by convention from denying the existence of an arbitration clause56

2.5 Existence of57

2.5.1 Contract contains conflicting dispute clauses57

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 clause60

2.6 Existing Dispute62

2.6.1 Where prior arbitration agreement may be too restrictive to cover an existing dispute62

2.7 Invalidated by63

2.7.1 Misrepresentation—where asserted options open to arbitrator and parties63

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 clause67

2.8 Need for written68

2.8.1 Contract sealed with wrong company seal68

2.8.2 Contract not signed—incorporated by reference?69

2.8.3 Oral agreement to resolve dispute by arbitration79

2.8.4 What effect an oral agreement made during the reference has on a written arbitration agreement83

2.9 No dispute85

2.9.1 Notice of arbitration given where no dispute exists85

2.10 Time limits88

2.10.1 Extension of time within which to commence arbitration88

2.10.2 Power to the court to extend time prescribed by lease to commence arbitration proceedings95

2.10.3 Whether time is of the essence in the appointment of an arbitrator in a rent review dispute96

2.10.4 Application to appoint an arbitrator outwith the statutory time limit98

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 time101

2.10.7 Arbitrator has impossibly short period to make award within time limit set down in lease105

2.11 Underlying contract, scope of106

2.11.1 Contract is frustrated； does arbitration clause survive?106

2.11.2 Contract void "ab initio"—severability of arbitration clause107

3 ARBITRATOR113

3.1 Arbitrator or expert113

3.1.1 Where both parties are lay people and unlikely to adduce satisfactory evidence113

3.1.2 Where a tenant wanted an expert not an arbitrator114

3.2 Authority of115

3.2.1 Party questions arbitrator’s authority unilaterally to set date for prelimi-nary meeting115

3.2.2 Arbitrator directs a party to be represented at a meeting of experts116

3.3 Death of118

3.3.1 Arbitrator dies during interlocutory stage118

3.3.2 Arbitrator dies during a long hearing121

3.4 Examination by122

3.4.1 Respondent accuses arbitrator of adopting an inquisitorial role122

3.4.2 When the parties agree that the arbitrator can act inquisitorially126

3.5 Functus officio129

3.5.1 Joint arbitrators disagree and umpire appointed129

3.5.2 Prior disclosure of contents of award to one party131

3.5.3 Losing party telephones arbitrator133

3.6 Independent advice133

3.6.1 Arbitrator decides it necessary to consult a third party133

3.7 Jurisdiction135

3.7.1 Challenge of arbitrator’s jurisdiction at commencement of hearing135

3.7.2 Arbitrators have no power to decide their own jurisdiction137

3.7.3 Threat of injunction against arbitrator on grounds of no jurisdiction139

3.7.4 Dispute in excess of jurisdiction146

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 contract149

3.7.7 Respondent asserts that arbitrator has no jurisdiction due to an oral agreement to refer the dispute to an official referee as arbitrator151

3.7.8 Appointed as arbitrator instead of independent expert153

3.7.9 Whether conduct amounts to a waiver or estoppel of objection to jurisdiction154

3.7.10 The arbitrator has serious doubts about his jurisdiction155

3.7.11 Arbitrator’s jurisdiction limited strictly to terms of arbitration agree-ment152

3.8 Loss of documents158

3.8.1 Loss or destruction of arbitrator’s notes following conclusion of hearing and before award158

3.8.2 Arbitrator’s notes destroyed in car accident during hearing159

3.9 Mistake by161

3.9.1 Arbitrator accused of making a mistake in reasoning161

3.10 Non-impartiality of162

3.10.1 Arbitrator’s personal knowledge of one party162

3.10.2 Arbitrator’s close personal connection with parties’ witnesses164

3.10.3 Party to arbitration seeks to have arbitration award set aside because of arbitrator’s previous professional relationship with other party165

3.10.4 Arbitrator discovers that his partner has previously acted for the claimant167

3.10.5 Arbitrator enquires of health of one party and is accused of bias169

3.10.6 Friend of arbitrator appointed as expert169

3.10.7 Arbitrator accused of bias towards a party’s advocate171

3.11 Note taking172

3.11.1 General guidance172

3.11.2 Shorthand writer unable to take note176

3.12 Own knowledge, use of177

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 agreement180

3.12.3 Where arbitrator’s special knowledge not able to be used183

3.12.4 Arbitrator’s personal knowledge of the facts in dispute184

3.12.5 Caution exercised by an arbitrator in using his own knowledge and experience185

3.12.6 Important to make parties aware of what is in the arbitrator’s mind186

3.12.7 The arbitrator has received written closing submissions but neither party has addressed a legal issue which the arbitrator considers is relevant187

3.12.8 Arbitrator—own knowledge in ex parte hearing188

3.13 Post award involvement191

3.13.1 Successful party claims award does not cover all issues referred to arbitration191

3.14 Powers of192

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 prosecution194

3.14.3 Consideration to take into account in striking out for want of prosecution198

3.14.4 Respondent applies to arbitrator to strike out the claimant’s claim for want of prosecution202

3.15 Removal of212

3.15.1 Respondent seeks removal of arbitrator on grounds of bias and alleges that the arbitrator ignored a legal point212

3.15.2 Parties wish to remove arbitrator220

Appendix "A"—Model Revocation Agreement224

Appendix "B"—New Agreement225

3.15.3 One party dissatisfied with arbitrator227

3.15.4 Respondent seeks removal of arbitrator on grounds of lack of impar-tiality228

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 parties232

3.16 Resignation234

3.16.1 Arbitrator resigns and parties hold him responsible for costs thrown away234

Appendix "A"—Model Agreement with Arbitrator on his resignation241

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 AWARD245

4.1 Action on245

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" arbitration247

Appendix "A"—Model of a "Name Borrowing" Agreement250

4.2 Appeal from252

4.2.1 Parties rights of appeal from award252

4.2.2 Where court will order further reasons253

4.2.3 Award appealed on ground that the arbitrator failed to state reasons in sufficient detail258

4.3 Consent259

4.3.1 Ensure that terms of settlement in consent award are within arbitrator’s jurisdiction259

Appendix "A"—Typical Consent Award263

4.3.2 Arbitrator requested to countersign consent award the terms of which caused him anxiety265

4.3.3 Arbitrator receives terms of settlement which appear to be ambiguous267

4.3.4 Disagreement as to terms of settlement269

4.3.5 Disagreement between the parties as to whether the dispute has been settled270

4.4 Enforcement270

4.4.1 Following an award in favour of the claimant the respondent goes to ground270

4.4.2 Where award unenforceable without post dispute agreement with "consumer"280

4.4.3 Enforcement of award out of time284

4.5 Errors—in or on the face of285

4.5.1 Generally where an arbitrator can correct errors and where he cannot285

4.5.2 Claimant alleges fact on face of award shows arbitrator to have made an error of computation291

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 incorrect293

4.5.4 Arbitrator admits inadmissible evidence294

4.5.5 When an error on the face of the award justifies giving leave to appeal295

4.5.6 Power of the arbitrator to correct error in award caused through misunderstanding over offer to settle296

4.5.7 Arbitrator erroneously double-counted an item in making award298

Appendix "A"—Typical Corrective notice300

4.6 Example of301

4.6.1 What form should the award take?301

4.6.2 Arbitrator’s award on disregarding tenant’s improvements in rent review305

4.7 Interim309

4.7.1 Power to make interim award309

4.7.2 Application for interim award in respect of costs of interlocutory proceedings314

4.7.3 Award "Final Save as to Taxation of Costs"317

4.7.4 When an arbitrator should not have published an Interim Award318

4.7.5 Where an interim award may not be Final320

4.8 Reasoned322

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 award326

4.8.3 Unrepresented party not clear whether they want reasons or not330

4.8.4 In a pre-AA ’96 Act reference an unrepresented party requests reasons after award is published333

4.8.5 Party requests retrospective reasons after award335

4.8.6 Request for reasons, not particularised336

4.8.7 Request for "open" reasons337

4.8.8 Where an arbitrator fails to give further reasons even though ordered to do so by the court338

4.8.9 Extent to which reasons should be given for factual findings in a rent review dispute339

4.8.10 When parties do not require a reasoned award340

Appendix "A"—Typical Agreement to dispense with reasons—s.52(1)343

4.9 Remitted343

4.9.1 Award remitted following procedural mishap343

4.9.2 Power of the arbitrator on remission of award345

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 performance349

4.10.1 Arbitrator requested to award specific performance349

4.11 Timing of351

4.11.1 Arbitrator’s award in danger of being published after statutory time limit351

4.11.2 Where an arbitrator takes an inordinate time to make his award following the conclusion of the hearing352

4.12 Weighing the evidence355

4.12.1 How to weight the evidence when drafting an award355

5 CAUSE OF ACTION363

5.1 Accrual of363

5.1.1 Dispute between parties concerning accrual of cause of action363

5.2 Replaced by award366

5.2.1 When the cause of action is widened after reference and subsequently replaced by award366

6 CLAIM DEFENCE AND COUNTERCLAIM373

6.1 Claim—hopeless373

6.1.1 Points of claim indicate a hopeless case373

6.1.2 Claimant submits what may be a spurious claim376

6.2 Defence—hopeless377

6.2.1 It becomes apparent at preliminary meeting that respondent has very poor defence377

6.3 Counterclaim—right to mount380

6.3.1 Impoverished respondent seeks to mount counterclaim380

7 COMMON LAW ARBITRATIONS383

7.1 Common Law Arbitrations383

7.1.1 Arbitration clause incorporated by reference averred to be invalid383

7.1.2 Arbitrator requested to make a peremptory order385

7.1.3 One party seeks to revoke the arbitrator’s appointment387

8 CONTRACT389

8.1 Is there a written?389

8.1.1 Doubt raised as to whether a written contract exists or not389

Appendix "A"—Typical "ad hoc" written arbitration agreement391

8.2 Existence of392

8.2.1 Dispute as to the existence of a contract392

8.3 Not signed394

8.3.1 Work executed under contract not signed394

8.4 Wrong, cited in pleadings395

8.4.1 Appointment made under one contract but Points of Claim refer to a different contract395

9 COSTS397

9.1 Generally397

9.1.1 Award does not cover costs397

9.1.2 Arbitrator must act judicially in deciding costs398

9.1.3 Where one party alleges that the arbitrator has not excercised his discretion judicially in dealing with costs400

9.1.4 Parties fail to address the arbitrator on costs before close of hearing401

9.1.5 Who should get costs if a Point of Claim is withdrawn before hearing commences?402

9.2 Power to deal with403

9.2.1 Where does the arbitrator’s power come from?403

9.2.2 Parties request arbitrator to give an informal indication on costs405

9.2.3 Where one party wishes to defer determination of costs406

9.3 What costs?407

9.3.1 Costs of the reference and costs of the award407

9.3.2 How to deal with court costs in arbitration409

9.3.3 Can an arbitrator deal with the court costs of determining a preliminary point of law410

9.3.4 Application for costs of matters pleaded and subsequently admitted411

9.4 Follow the event413

9.4.1 What is the event?413

9.4.2 Identity of the successful party416

9.5 Unusual award as to419

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 directions426

9.6.1 Generally426

9.6.2 Why an arbitrator should not link a cost order to the right to serve a pleading429

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 costs435

9.7 Costs—of a lay representative437

9.7.1 Power to award costs of party where represented by a non-practising lawyer or other unqualified person437

9.8 Agreement between the parties as to costs440

9.8.1 Whether an agreement between the parties that they bear their own costs is valid440

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 costs443

9.8.3 Parties agree settlement terms but fail to include arbitrator’s fee444

9.9 Where there is a counterclaim445

9.9.1 What now is the event?445

9.9.2 Costs where the claimant wins the claim but loses the counterclaim447

9.10 Where there are offers to settle448

9.10.1 The effect of a "sealed offer" on costs448

9.10.2 Rent review costs, close Calderbank offers, discretion acting judicially450

9.10.3 The effect of a change of pleadings upon an offer to settle456

9.10.4 The reasonableness of refusing an offer in a multi-party action458

9.10.5 Offers where there is a claim and a counterclaim460

9.10.6 Where there is an offer and a counter-offer461

9.10.7 Relevance of offer, counter-offer and withdrawal of offer in exercising discretion as to costs462

9.10.8 Where doubt exists over the event for which both a sealed and an "open" offer received464

9.11 Applications to court466

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 costs467

9.11.3 Appeal against an unusual award as to costs469

9.11.4 How the court can assist where one party claims that the arbitrator’s fees appear to be excessive470

9.11.5 Arbitrator refuses to deliver award until fees are paid473

9.12 Security for the parties’ costs474

9.12.1 Power of arbitrator to order security for costs474

Appendix "A"—Typical "ad hoc" Arbitration Agreement481

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" arbitration488

9.12.4 Security for costs under rules489

9.12.5 The procedure the arbitrator should follow in dealing with security for parties’ costs491

Appendix "A"—Typical direction for procedure for dealing with security for costs application494

9.12.6 The claimant fails to comply with the arbitrator’s direction for affidavit evidence496

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 costs509

9.12.8 The respondent makes an application to increase security previously ordered511

Appendix "A"—Typical direction ordering an increase in security for costs previously awarded513

9.12.9 How to deal with a security for costs application where either party could be the claimaint514

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 security515

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 costs518

9.13 Recoverable costs519

9.13.1 Arbitrator asked to exercise power to cap costs519

Appendix "A"—Typical order for directions for limiting the parties’ recoverable costs—s.65 AA ’96527

9.13.2 An arbitrator decides to exercise his discretion to tax the parties’ costs528

9.13.3 Parties cannot agree on the form of Bill for arbitrator’s settlement of costs530

Appendix "A"—Typical direction for Settlement of Costs532

9.13.4 Procedure to follow where arbitrator to tax the parties’ costs534

9.13.5 Procedure to follow where arbitrator is to determine the parties’ recoverable costs544

10 DAMAGES553

10.1 Assessment of553

10.1.1 Generally553

10.1.2 How to decide when a party is liable for damages557

Appendix "A"—Flow chart showing how to analyse a Point of Claim or counterclaim561

10.1.3 Where damages assessed on same basis in contract as in tort562

10.1.4 Damages claimed for defective work executed some years before567

10.1.5 Measure of damages where there is a third party settlement568

10.2 Quantum of569

10.2.1 Liquidated damages linked to sectional completion and whether notice is a condition precedent to deducting them569

10.2.2 When employer wrongfully repudiates contract577

10.2.3 Loss and expense claims clarified580

10.3 For distress and inconvenience586

10.3.1 Power to award general damages in building cases586

11 DECLARATORY RELIEF595

11.1 Arbitrator’s power to award595

11.1.1 Arbitrator’s power to make a declaratory award595

12 DIRECTIONS599

12.1 General599

12.1.1 The arbitrator’s power to give directions599

12.1.2 Typical direction concerning the preliminary meeting601

Appendix "A"—Typical letter to parties re appointment and checklist for preliminary meeting602

Appendix "B"—Typical Order for directions confirming date,time and venue for Preliminary Meeting606

Appendix "C"—Typical agenda for a preliminary meeting under JCT Arbi-tration Rules607

Appendix "D"—Typical Direction following preliminary meeting—JCT Arbi-tration Rules616

12.2 Interlocutory624

12.2.1 Extending time for service of party’s statement624

Appendix "A"—Direction extending time for service of statement627

12.2.2 Amendment of a party’s statement628

Appendix "A"—Direction consenting to request to amend pleadings629

12.2.3 Notice under the Civil Evidence Act 1995630

Appendix "A"—Typical direction covering notice under the Civil Evidence Act 1995632

12.2.4 When a pre-hearing review should be held633

Appendix "A"—Typical Direction convening a pre-hearing review meeting635

Appendix "B"—Typical agenda for pre-hearing review meeting636

Appendix "C"—Typical Direction following pre-hearing review meeting—post AA ’96638

12.2.5 Arbitrator not bound to give reasons for interlocutory directions and court cannot review or revise them641

12.2.6 Arbitrator not obliged to give reason for interlocutory decisions but does so voluntarily642

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 with647

12.3.1 Generally647

12.3.2 Failure to serve claim as directed652

Appendix "A"—Peremptory Order following failure to serve a statement of case654

12.3.3 Failure to serve Defence as directed655

12.3.4 Failure by a party to reply to a request for Further and Better Particulars655

Appendix "A"—Typical Direction following failure to comply with a request for Further and Better Particulars657

12.3.5 Failure of party to comply with Direction for Specific Discovery659

Appendix "A"—Typical Peremptory Order for Specific Discovery661

12.3.6 Unless Order re failure to serve witness statements662

Appendix "A"—Typical Unless Order following failure to serve witness statements663

12.3.7 Respondent refuses to waste his time defending a sham claim664

Appendix "A"—Typical Direction warning of possible ex parte hearing666

12.4 Amendment of668

12.4.1 Application to amend an arbitrators direction which was made without prior discussion with the parties668

13 DOCUMENTS669

13.1 Authenticity distinguished from admissibility669

13.1.1 How to determine authenticity of possibly admissible evidence669

13.2 Discovery of670

13.2.1 Restricted discovery during determination of preliminary issue670

13.2.2 Request by parties for early discovery671

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 discovered672

13.2.4 Unreasonably wide request for discovery674

13.2.5 Arbitrator takes independent legal advice on order for discoverY675

Appendix "A"—Typical Order for Directions for Discovery of Documents677

13.2.6 Specific Discovery678

Appendix "A"—Typical Order for Directions for Specific Discovery681

13.2.7 Very late request for further discovery683

13.2.8 Application for discovery during the course of the hearing684

13.2.9 Court no longer has power to order discovery in arbitration685

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 arbitrator687

13.2.12 The restriction on documents obtained in discovery688

13.2.13 Does a party have to disclose all copies of a particular document following an order for discovery689

13.3 Inspection of690

13.3.1 Documents destroyed, therefore not available for inspection690

13.4 Only691

13.4.1 Arbitrator requires further submissions in order to determine the dispute691

13.4.2 Privileged document accidentally included and essential document omitted691

13.4.3 A brief preliminary meeting with the parties in "documents only" arbitration sometimes bears fruit693

Appendix "A"—Typical request for written answers to questions696

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 reference697

13.4.6 Where documents contain a claim which arises following the application to refer699

13.4.7 Where burden of proof can shift to the respondent700

13.4.8 Where a similar fact evidence might be admissible in a "documents only" arbitration702

13.4.9 Following an award the unrepresented claimant accuses the arbitrator of failing to note crucial evidence703

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" arbitration705

13.4.12 Where it is desirable, or necessary, to switch from a "documents only" procedure to an oral hearing711

13.4.13 Model Award711

Appendix "A" Model Award713

13.5 Production of717

13.5.1 Introduction at hearing of documents not previously referred to717

13.6 Reading of718

13.6.1 Extent to which the arbitrator should read the hearing bundle718

13.7 Statements in719

13.7.1 Arbitrator received confidential document from claimant complaining of respondent719

14 EVIDENCE721

14.1 Admissibility of721

14.1.1 Generally—Arbitrator must admit all admissible evidence721

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 party728

14.1.4 Power of arbitrator to limit admissible evidence730

14.1.5 Admissibility of unsigned witness statements where party evinces an intention of taking no further part in the proceedings732

14.1.6 Admissibility of documents inadvertently missed in discovery734

14.1.7 The effect of s.34(2)(f) AA ’96 (Evidence—admissibility, relevance and weight) in rent review arbitrations735

14.2 Estoppel737

14.2.1 Cause of action estoppel defence may not always apply737

14.2.2 Whether issue estoppel can be successfully pleaded738

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 reached741

14.3 Expert742

14.3.1 Generally742

14.3.2 One party appoints an expert, the other party fails to do so756

14.3.3 Expert appointed by the arbitrator759

Appendix "A"—Standard direction on expert evidence763

14.3.4 Using a second expert witness764

14.3.5 Admissibility of expert evidence765

14.3.6 Whether the arbitrator has power to order the disclosure of an expert’s report767

14.3.7 Expert witness dies just before the hearing770

14.3.8 Distinguishing between evidence of witnesses of fact and expert witnesses772

14.3.9 Expert evidence in complete contradiction773

14.3.10 Expert witnesses unable to agree on any matters of fact in dispute776

14.3.11 Neither expert’s evidence preferred by the arbitrator779

14.3.12 Party prompts own expert while giving evidence780

14.3.13 Problem of hearing expert evidence on lengthy Scott Schedule781

14.3.14 The respondent makes an application during the hearing to have his key witness of fact called as an expert782

14.3.15 An ex-employee wishes to appear as an expert witness for the party who previously employed him784

14.3.16 Expert did not produce his own backup material785

14.3.17 Expert deviates from his report and argues merits of his party’s case787

14.3.18 Expert omits to deal with material facts789

14.3.19 Determination—taxation of incompetent expert’s costs790

14.3.20 Expert is clearly partisan791

14.3.21 Expert evidence contradicts evidence that the expert gave in a previous arbitration795

14.3.22 An expert includes evidence in his report from another expert796

14.3.23 The tribunal appointed expert798

Appendix "A"—Typical alternative agenda items for the option of a tribunal appointed expert802

14.4 Fresh803

14.4.1 Arbitrator’s failure to consider fresh evidence before publishing award in "documents only" reference803

14.4.2 Party attempts to admit fresh evidence after conclusion of hearing but before award805

14.4.3 Party submits fresh evidence to the arbitrator after publication of his nal award806

14.4.4 Party no opportunity of making submission to arbitrator on fresh evidence after hearing the facts807

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 submissions809

14.5 Hearing810

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 party810

14.5.2 Arbitrator receives evidence in absence of both parties812

14.5.3 Arbitrator determines dispute without hearing either party812

14.5.4 The admissibility of documents into an "ex parte" hearing not previously discovered813

14.5.5 Witness’s evidence varies from his written proof814

14.6 Hearsay815

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 apply817

14.6.3 Claimant requests consent to refer to a letter rather than calling the writer821

14.7 Privilege821

14.7.1 A claim of legal professional privilege821

14.7.2 Litigation privilege and non-practising legally qualified advisers823

14.7.3 What "privilege" can be claimed by non-legally qualified advisers?826

14.7.4 Privilege in rent review arbitrations829

14.7.5 Privileged material referred to at a preliminary meeting832

14.7.6 Refusal to disclose confidential documents833

14.7.7 Argument adduced at hearing from a privileged document835

14.7.8 Where a "without prejudice" offer may not be privileged836

14.7.9 Deliberate disclosure of a "without prejudice" letter to the arbitrator?837

14.7.10 Public interest claimed as privilege841

14.8 Proofs of844

14.8.1 Party’s counsel objects to exchange of proofs of evidence844

14.8.2 How exchanged statements of witnesses of fact may be used at a hearing845

14.8.3 Parties ordered to exchange witnesses’ proofs of evidence； one party fails to do so847

Appendix "A"—Unless Order—Order for Directions849

14.8.4 Parties ordered to exchange witnesses’ proofs of evidence.One party fails to do so, even after threat of debarment850

Appendix "A"—Unless Order—Order for Directions No 19853

14.9 Relevant854

14.9.1 Distinction between relevance and weight854

14.9.2 Claimant fails to deal with what the arbitrator considers is relevant point855

14.9.3 Counsel questions relevance of tenant’s accounts in rent review dispute856

14.10 Similar fact859

14.10.1 Application for discovery of similar fact evidence859

15 EXPERT DETERMINATION863

15.1 Expert determination863

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 judicially869

1.5 Determination in the absence of a dispute871

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 FEES875

16.1 Generally875

16.1.1 Generally875

Appendix "A"—Arbitrator’s Terms888

Appendix "B"—Time Sheet890

Appendix "B"—Expense Sheet891

Appendix "C"—Typical Fee Statement892

16.2 Non agreement of895

16.2.1 One party agrees to arbitrator’s fees, the other does not895

16.2.2 Neither party responds to arbitrator’s request to sign terms； the arbitrator subsequently seeks a commitment fee897

16.2.3 Party considers arbitrator’s fees too high899

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 of903

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 requested903

16.3.2 Cheque for interim fees is not honoured911

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 months912

16.3.4 Payment of arbitrator’s out-of-pocket expenses915

16.3.5 One party offers to pay half of the arbitrator’s fees only on collection of award916

16.3.6 Arbitrator publishes award and parties do not collect918

16.3.7 Parties settle, but make no agreement concerning the arbitrator’s fees and neither accepts liability for them919

Appendix "A"—Typical points of claim923

16.4 Arbitrators, security for927

16.4.1 Generally927

16.4.2 Failure by one or both parties to comply with a direction of the arbitrator to provide security for his fees and expenses931

Appendix "A"—Typical Direction for procedure for dealing with the arbi-trator’s security for costs933

Appendix "B"—Typical Peremptory Order following failure to provide security when directed935

16.4.3 What to do with a substantial sum lodged with the arbitrator as security for his costs936

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 security937

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 comply938

16.4.6 Security for arbitrator’s fees after company put into liquidation939

17 HEARING941

17.1 Adjournment of941

17.1.1 Parties jointly request adjournment of hearing941

17.1.2 A hearing is set and one or both parties fail to turn up942

17.1.3 Adjournment requested to consider supplementary expert’s report943

17.2 Agreed bundle944

17.2.1 No agreed bundle delivered to the arbitrator944

17.2.2 Parties fail to prepare agreed bundle and produce their own946

17.3 Evidence947

17.3.1 When relaxation of strict rules of evidence is permissible947

17.3.2 Counsel constantly objects to leading questions949

17.4 Interventions950

17.4.1 Arbitrator stops counsel after long-winded submission950

17.4.2 When it is permissible for an arbitrator to interrupt counsel952

17.4.3 Arbitrator interrupts counsel indicating his acceptance of point being made954

17.5 Order of956

17.5.1 Respondent seeks to interpose his expert earlier into the hearing956

17.6 Party’s right to be present throughout957

17.6.1 Respondent consistently rude to the arbitrator957

17.6.2 Arbitrator excludes objectionable party959

17.7 Postponement of960

17.7.1 Postponement requested due to non-availability of Counsel960

17.7.2 Respondent wishes to postpone start of hearing961

17.8 Presence of a stranger963

17.8.1 Attendance of person not involved in dispute963

17.8.2 Confidentiality of arbitral proceedings964

17.9 Right to have968

17.9.1 One party wants to have oral hearing the other wants "documents only"968

17.10 Speed of progress at969

17.10.1 Arbitrator controls speed of progress at hearing969

17.11 Unequal representation at970

17.11.1 Unequal representation at hearing970

18 INJUNCTION973

18.1 Arbitrator’s power to grant973

18.1.1 Employer requests the arbitrator to grant an interim injunction against an obstructive contractor973

18.1.2 Power of the court975

19 INSPECTION977

19.1 Arbitrator’s power to order977

19.1.1 Whether arbitrator has power to order inspection of property which is the subject of the reference977

19.1.2 Arbitrator wishes to inspect a model of the property which is the subject of the reference978

19.1.3 When an arbitrator should inspect the property subject of the dispute980

19.2 Difficulties arising from982

19.2.1 Requirement to inspect frustrated by claimant982

19.2.2 One party requests arbitrator to inspect property： the other party objects so the arbitrator offers to use the visit to take evidence983

19.2.3 Respondent ignores all arbitrator’s directions and subsequently denies access for arbitrator’s inspection984

19.3 Rights of parties at985

19.3.1 The rights of parties at an inspection compared with rights at the hearing itself985

20 INTEREST989

20.1 General and special damages989

20.1.1 Whether the arbitrator has power to award interest by way of general damages for late payment of debt989

20.2 Special damages997

20.2.1 Interest incurred as a direct loss and/or expense or as special damages997

20.3 Discretion under AA ’96999

20.3.1 How s.49 AA ’96 has changed the arbitrator’s discretion to award interest under s.19A AA ’50999

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 charges1006

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 basis1006

20.5 Sums due and unpaid, on1009

20.5.1 Whether the arbitrator has power to award interest on sums paid late but before the arbitration commences1009

20.5.2 Whether the arbitrator has power to award interest on sums found by him to be under-certified1010

20.5.3 The distinction between mere counterclaims and counterclaims which also constitute defences of abatement or set off1013

20.6 Not pleaded1016

20.6.1 Neither party claims interest1016

20.7 Where there is an offer to settle1017

20.7.1 Where interest can have a significant effect1017

21 SERIOUS IRREGULARITY1019

21.1 Serious irregularity—misconduct1019

21.1.1 Generally1019

21.1.2 Thomasina researches cases of "Misconduct"1025

21.1.3 Cases of "Misconduct" in Construction Cases1030

21.1.4 Cases of "Misconduct" in Rent Review Cases1039

21.2 Serious irregularity—failure by the tribunal to comply with s.33 and resulting in s.24 sanctions1042

21.2.1 Failure to disclose documents to both sides； admissibility of evidence1042

21.2.2 Whether to refuse adjournment could be said to be not properly conducting the proceedings1046

21.2.3 Arbitrator comes to view contrary to evidence adduced before him1047

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 misconduct1049

21.3 Serious irregularity—challenging the award1050

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 ’961062

21.3.8 An arbitrator admits to an irregularity in the award (s.68(2)(i) AA ’96)1062

21.4 Misconduct—immunity from suit1063

21.4.1 Of the arbitrator1063

21.4.2 Of the Appointing Body1067

22 OATH1073

22.1 Taking of1073

22.1.1 Difficulty arises at hearing over form of sacred book1073

22.1.2 Witness privately prompted by his advocate whilst still under oath1075

22.1.3 Witness clearly lying under oath1076

23 OFFER TO SETTLE1079

23.1 Open1079

23.1.1 Arbitrator sent a copy of an "open" offer1079

23.1.2 Should an open offer attract interest?1080

23.2 Sealed1080

23.2.1 Arbitrator asks parties if a sealed offer has been made1080

23.2.2 Existence of "secret" offer disclosed to arbitrator1081

23.2.3 Failure to disclose the existence of a sealed offer before award1083

23.3 Treatment of costs when1085

23.3.1 When the sealed offer exceeds the net amount awarded1085

23.4 Without prejudice1087

23.4.1 Disclosure of "without prejudice" offer1087

23.4.2 Arbitrator sent a copy of a "without prejudice" offer1089

24 PARTIES1091

24.1 Assignment of claim1091

24.1.1 Receiver of claimant company assigns to a third party right to arbitrate a dispute1091

24.2 Bankruptcy of1092

24.2.1 Party is put into bankruptcy during arbitration1092

24.3 Death of1094

24.3.1 Party dies during reference1094

24.4 Disputes as to1098

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 denies1098

24.5 Illness of1102

24.5.1 Party requests indefinite deferment due to illness1102

24.6 Liquidation of1103

24.6.1 Power of arbitrator to proceed when party put into compulsory liquidation1103

24.6.2 Party in liquidation； original assignor’s right to arbitration1104

24.6.3 Claimant goes into creditors’ voluntary liquidation during reference1105

24.7 Loss of confidence in arbitrator1107

24.7.1 During a hearing a party loses confidence in ability of the arbitrator to grasp satisfactorily the problems being arbitrated1107

24.8 Personal contacts with1108

24.8.1 Arbitrator found to have regular contact with one party1108

24.9 Receivership, in1110

24.9.1 Party put into receivership during arbitration1110

24.10 Reluctant respondent1111

24.10.1 Respondent fails to acknowledge arbitrator’s letters1111

24.10.2 Respondent persistently fails to comply with arbitrator’s directions1115

24.10.3 Respondent engaged in delaying tactics1115

24.11 In repudiatory breach1117

24.11.1 When a respondent seeks a declaration that the claimant has repudi-ated the Arbitration Agreement1117

24.12 Impecuniosity of1119

24.12.1 The respondent (counter-claimant) admits to being totally out of funds1119

24.13 Role reversal1120

24.13.1 Respondent becomes claimant1120

24.13.2 Tenant avers that he, not the landlord, should be the claimant1121

24.14 Written Agreement, of1121

24.14.1 One party attempts to resile from an earlier agreement1121

25 POINTS OF LAW1125

25.1 Preliminary issue on1125

25.1.1 Preliminary issue of point of law1125

25.1.2 Party asks arbitrator to apply to the High Court to determine point of law1130

25.1.3 Arbitrator faces difficult legal argument1131

25.1.4 Where an arbitrator may be aware of legal authority not cited by either side1133

25.1.5 Duty of counsel when a difficult point of law arises1133

25.1.6 Where no authority cited in support of legal contentions1135

25.1.7 Landlord avers a typing error in the notice of review, which the tenant has signed and returned1136

25.1.8 Differing interpretations arise out of a rent review clause1138

25.1.9 Arbitrator to assess level of rent on review for full repairing and insuring lease subject to schedule of conditions left blank1139

26 PLEADINGS1141

26.1 Statements of claim and defence1141

26.1.1 Formal pleadings or statement of case?1141

26.2 Amendment of1146

26.2.1 Generally1146

Appendix "A"—Typical Order for Directions granting an application to amend Pleadings1150

26.2.2 Late amendment of pleading necessary to include counterclaim1152

26.2.3 Claimant requests amendment of pleadings during hearing1153

26.2.4 Late request to cover continuing loss of pleaded item1155

26.3 Fraud in1157

26.3.1 Suggestion of fraud in pleadings1157

26.4 Further and better particulars1158

26.4.1 Generally1158

Appendix "A"—Typical requests for Further and Better Particulars of defence and counterclaim1162

Appendix "B"—Unless order in respect of failure to reply to Further and Better Particulars1164

26.4.2 How to deal with requests for Particulars to which the asking party declines to reply1166

26.5 Late service of1167

26.5.1 Extending the timetable for service of pleadings1167

26.6 Not properly particularised1168

26.6.1 Claim in pleadings in "global" terms1168

26.6.2 Arbitrator directs how inadequate pleadings should be remedied1173

26.6.3 Questions put to the parties1175

Appendix "A"—Typical Order re Notice to Admit Facts1179

Appendix "B"—Re typical request for Interrogatories (Questions from the arbitrator)1180

26.7 Re-service of1181

26.7.1 Party’s newly appointed solicitor requests consent to Re-Serve Defence and Counterclaim previously inadequately served by lay representative1181

Appendix "A"—Typical Direction granting the respondents application to re-serve its defence1184

Appendix "B"—Typical Direction seven-day notice to respondent re failure to serve defence1186

26.8 Without prejudice1187

26.8.1 Pleadings alleged to be "without prejudice"1187

27 PROCEEDINGS1189

27.1 Abandonment of reference1189

27.1.1 Absentee respondent, working and resident overseas, refuses to appoint representative.Claimant elects to start arbitration proceedings and subsequently claims abandonment1189

27.2 Conduct of1191

27.2.1 How the Arbitration Act 1996 has changed the approach of the parties and the arbitrator1191

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 dispute1206

27.2.4 Consideration of the most cost effective procedure1208

27.2.5 The preliminary meeting and beyond1216

27.2.6 Parties disagree on form of proceedings1220

27.2.7 Requirement to follow agreed procedure1223

27.2.8 Doing something contrary to the parties’ expectations in a written representations rent review procedure1224

Appendix "A"—Typical opening letter to the parties1226

Appendix "B"—Typical follow up letter1228

Appendix "C"—Typical preliminary meeting agenda1229

Appendix "D"—Order for directions on documents only with or without a preliminary meeting1231

27.2.9 Wot, no preliminary meeting?1234

Appendix "A"—Typical letter to lay parties where arbitrator decides to dispense with preliminary meeting1236

Appendix "A"—List of matters which need to be covered by my directions to the parties1239

Appendix "B"—Typical abbreviated terms for a simple dispute with lay parties1240

27.3 Equitable determinations1242

27.3.1 Parties consider effect of adopting an equity clause1242

27.4 Exclusion agreements, entering into1248

27.4.1 Party queries effect of entering into an exclusion agreement1248

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 award1253

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 solicitor1258

27.5.3 The reluctant respondent’s bluff is called1260

27.5.4 The respondent appears, without warning, on the first day of the hearing1262

27.5.5 The respondent says he will not attend the hearing due to insufficient time to prepare1263

27.5.6 Respondent fails to appear at the hearing.The claimant attempts to introduce evidence in his absence1265

27.5.7 Dealing with a counterclaim and costs at an "ex parte" hearing1266

27.6 Proceedings—multi-party arbitrations1267

27.6.1 The employer seeks to commence an arbitration against a nominated subcontractor and against the main contractor in the same action1267

27.6.2 Application made to consolidate two arbitrations1268

27.6.3 The arbitrator’s power to consolidate or order concurrent hearings in related disputes1274

27.6.4 What alteration is necessary to normal procedures when joinder provisions are invoked?1281

Appendix "A"—Extract from typical Direction in joinder cases1284

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 entitlement1286

27.6.6 Difficulties and costs where separate arbitration clauses in related contacts1287

27.7 Stay of, overlap with litigation1288

27.7.1 Limitations of arbitrator’s consideration of overlapping issues when arbitration and litigation proceed in parallel1288

27.7.2 Concurrent proceedings—inter-relationship with court proceedings1292

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 proceedings1297

27.7.5 Refusal to operate an Arbitration Agreement—can a party go to court?1298

27.8 Substantive and procedural law1300

27.8.1 Arbitrator asked to rule on the proper law of the contract and what rules should apply to access to witnesses1300

28 PROPERTY1305

28.1 Subject of Reference1305

28.1.1 Claimant makes application to the arbitrator to release property,retained by the respondent, which is subject of the reference1305

28.1.2 Respondent threatens to sell goods which are the subject of the reference1307

29 RECTIFICATION1311

29.1 Contract, of1311

29.1.1 Power of arbitrator to deal with rectification of the contract1311

29.1.2 Power of arbitrator to order damages resulting from rectification of contract1313

30 REPRESENTATION1315

30.1 Party in Person, Assistance of1315

30.1.1 Right of party appearing in person to have assistance of a McKenzie friend1315

30.1.2 Extent to which the arbitrator assists an unrepresented party1316

30.2 Poor Quality1317

30.2.1 Counsel presenting case in incompetent fashion1317

30.2.2 Parties’ representatives have little or no idea of arbitration procedure1318

30.3 Legal1319

30.3.1 "Fit for Counsel"1319

Appendix "A"—Typical extract from Order for Directions1323

30.3.2 Solicitor withdraws before the hearing1324

30.3.3 Counsel appears at hearing without warning1324

31 SPECIFIC PERFORMANCE1327

31.1 Interim award for1327

31.1.1 Claimant seeks order for specific performance from unique specialist contractor1327

32 SUBMISSIONS1331

32.1 Closing1331

32.1.1 Advocate’s closing submissions1331

32.2 Copied to both sides1334

32.2.1 Documents received by arbitrator not sent to other side1334

32.3 Opening1335

32.3.1 Counsel’s opening submissions1335

33 VALUE ADDED TAX1339

33.1 Value added tax1339

33.1.1 Generally1339

33.1.2 The VAT position when a party settles1345

Appendix "A"—Agreed Minutes of Meeting between HM Customs and Excise (VAT Office) and Law Society—23 October 19911350

33.1.3 The treatment of VAT and damages and "offers" to settle1354

34 WITNESSES1357

34.1 Appearing for both sides1357

34.1.1 Both parties wish to call same witness1357

34.2 Compellability to give evidence1358

34.2.1 Generally1358

34.2.2 Witness called by claimant refuses to attend hearing.Respondent alleges that this witness is central to his case1361

34.3 Illness of1362

34.3.1 Persistent interruptions to hearing through witness’s incapacity1362

34.4 Leading questions and prompting witness1363

34.4.1 When leading questions should be allowed and when prompting a witness is unacceptable1363

34.5 Hostile/objectionable behaviour1364

34.5.1 When a witness’s behaviour in giving evidence becomes unacceptable1364

34.6 Order of1366

34.6.1 Counsel requests that expert be called before witnesses of fact1366

34.7 Perjury, committed by1367

34.7.1 Witness clearly lying under oath and solicitors’ duty to ensure the truth of witness statements1367

34.8 Proof of evidence1368

34.8.1 Generally1368

34.9 Question, refusal to answer1371

34.9.1 Witness who previously agreed to give evidence now refuses to do so1371

35 APPEALS TO COURT1373

35.1 Power of court to extend time for beginning arbitral proceedings1373

35.1.1 Generally1373

35.2 Determination of preliminary point of jurisdiction1375

35.2.1 Generally1375

35.2.2 Challenging an arbitrator’s jurisdiction—ss.32 and 73 AA ’961377

35.3 Challenging the award jurisdiction1378

35.3.1 Generally1378

35.3.2 Arbitrator awards a longer extension of time than is asked for—s.68(1) and (2) AA ’961381

35.4 Determination of preliminary point of law1382

35.4.1 Generally1382

35.4.2 Preliminary issue—the arbitrator’s powers—ss.45 and 341384

35.5 On point of law1385

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 time1387

35.5.3 Generally1390

35.5.4 Appealing on a point of law1399

35.5.5 Limitations on application to the court—s.70(2)(b)1402

35.5.6 Parties pre-consent to appeal1403

35.5.7 The court’s discretion to grant leave to appeal in respect of a question of law not argued before the arbitrator1405

35.5.8 Party seeks leave to appeal to the Court of Appeal on decision of the High Court1406

APPENDIX 1—STATUTES1409

1.1 Arbitration Act 19501409

1.2 Arbitration Act 19751429

1.3 Arbitration Act 19791431

1.4 Arbitration Act 19961437

1.5 Civil Evidence Act 19681484

1.6 Civil Evidence Act 19721490

1.7 Civil Evidence Act 19951493

1.8 Agricultural Holdings Act 19861505

1.9 Agricultural Tenancies Act 19951510

APPENDIX 2—RULES OF THE SUPREME COURT 19971513

APPENDIX 3—DISPUTE RESOLUTION1551

3.1 CIArb Arbitration Rules (1988)1551

3.2 CIArb Short Form Arbitration Rules 19911558

3.3 CIArb Guidelines for Supervised Settlement Procedure (1990 Edition)1561

3.4 CIArb New Consumer Dispute Resolution Scheme1565

3.5 CIArb Standard Consumer Arbitration Scheme Guidance Notes for the Parties1575

3.6 Arbitration Scheme for the Association of British Travel Agents1579

3.7 Schedule of Administered Schemes1583

3.8 Guidelines of Good Practice for Arbitrators1585

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 19901609

3.13 GAFTA Arbitration Rules No.1251616

3.14 Draft ICC Rules 19971627

3.15 Draft New LCIA Rules 19971638

3.16 The JCT Arbitration Rules (18 July 1988)1651

3.17 Draft Proposed Amended JCT Rules 19971659

3.18 JCT Contracts, Sub-Contracts and Arbitration Rules—Note to Users1670

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 interest1673

3.20 Institution of Civil Engineers’ Arbitration Procedure (1997)1675

3.21 The Construction Industry Model Arbitration (CIMA) Rules1686

Index1705