ARBITRATIONPRACTICE

AND PROCEDURE

INTERLOCUTORY ANDHEARING PROBLEMS

By

D. MARK CATOFRICS, FCIArb

SECOND EDITION

FOREWORD BYTheRT. HON. LORD MUSTILL

President of the Chartered Institute of Arbitrators

ENDORSED BY THE ROYAL INSTITUTIONOF CHARTERED SURVEYORS

ANDTHE ROYAL INSTITUTE

OF BRITISH ARCHITECTS

LLPLONDON HONG KONG

1997

TABLE OF CONTENTS

Foreword viiPreface to the Second Edition ixPreface to the First Edition xvBibliography xxiTable of Cases xlixTable of Statutes lxixTable of Statutory Instruments lxxviiTable of Rules lxxixTable of Conventions and Directives lxxxiii

1 APPOINTMENT 1

1.1 Challenge to 11.1.1 The respondent challenges the qualification of the arbitrator 1

1.2 Disqualification for 21.2.1 Approached by one party 21.2.2 Called for interview by one party 3

1.3 Estoppel 41.3.1 Party who appoints an arbitrator subsequently estopped from ascer-

taining that arbitrator has no authority 41.3.2 Is a newly appointed solicitor estopped from questioning the arbitrator's

jurisdiction? 61.4 Invalidity of 7

1.4.1 Respondent developer claims that Chartered Institute of Arbitrators hasmade an invalid appointment and that the arbitrator has no power to call apreliminary meeting 7

1.4.2 Appointment letter from nominating body signed by person other thanthat person named in contract 8

1.4.3 Respondent asserts the claimant has not complied with preconditionrelated to arbitrator's appointment 9

1.4.4 Respondent questions validity of appointment 121.4.5 Party contends appointment invalid as made out of time 131.4.6 Validity of unilateral reference for the appointment of an arbitrator 161.4.7 Conditional appointment of arbitrator 191.4.8 The appointment of an arbitrator must be made in strict compliance with

the contract 221.4.9 Party attempts to nominate third arbitrator 231.4.10 Whether an appointment is valid where a joinder notice has been served

prior to the date of that appointment 24

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1.5 Non-Acceptance of Terms 251.5.1 Claimant refuses to accept arbitrator's terms following appointment 25

1.6 Parties' Failure to Agree 271.6.1 The dispute clause does not provide how an arbitrator should be

appointed and the parties cannot agree 271.7 Withdrawal/Resignation From 28

1.7.1 Arbitrator attempts to withdraw after appointment 281.7.2 Arbitrator invited to withdraw 30

1.8 Wrong Reference 331.8.1 Appointment letter from nominating body cites incorrect reference to

Act 331.8.2 Arbitrator's qualifications do not meet specific requirements of arbi-

tration agreement 35

2 A R B I T R A T I O N A G R E E M E N T 39

2.1 Ad hoc submissions 392.1.1 Reference to arbitration after dispute arises 392.1.2 Whether the subsequent conduct of the parties amounted to an "ad hoc"

arbitration agreement 412.2 Condition Precedent 44

2.2.1 Whether arbitrator's award is a condition precedent to a cause of action 442.2.2 Where a dispute has to be referred to engineer's decision as a condition

precedent to arbitration 462.3 Dispute as to Validity of 50

2.3.1 Compliance with contract, prerequisite to trigger written arbitrationagreement 50

2.3.2 Respondent questions validity of arbitrator's appointment as architect'sfinal certificate had been issued 51

2.3.3 Where conclusiveness of architect's final certificate time bars arbitration 532.4 Estoppel 54

2.4.1 Party asserts other party estopped from proceeding with arbitration 542.4.2 Whether a party is estopped by convention from denying the existence of

an arbitration clause 562.5 Existence of 57

2.5.1 Contract contains conflicting dispute clauses 572.5.2 Is there a valid arbitration agreement if the contract is not signed? 592.5.3 Parties agree to arbitrate in mistaken belief that contract contains an

arbitration clause 602.6 Existing Dispute 62

2.6.1 Where prior arbitration agreement may be too restrictive to cover anexisting dispute 62

2.7 Invalidated by 632.7.1 Misrepresentation—where asserted options open to arbitrator and

parties 632.7.2 Mistake—is award enforceable where arbitration based on a mistake of

fact? 652.7.3 Illegality—whether illegality invalidates an arbitration clause 67

2.8 Need for written 682.8.1 Contract sealed with wrong company seal 682.8.2 Contract not signed—incorporated by reference? 692.8.3 Oral agreement to resolve dispute by arbitration 79

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2.8.4 What effect an oral agreement made during the reference has on a writtenarbitration agreement 83

2.9 No dispute 852.9.1 Notice of arbitration given where no dispute exists • 85

2.10 Time limits 882.10.1 Extension of time within which to commence arbitration 882.10.2 Power to the court to extend time prescribed by lease to commence

arbitration proceedings 952.10.3 Whether time is of the essence in the appointment of an arbitrator in a

rent review dispute 962.10.4 Application to appoint an arbitrator outwith the statutory time limit 982.10.5 Is determination of time limit issue a point of jurisdiction? 992.10.6 Arbitrator urged to rej ect an application for an extension of time to serve

a statement of claim where the request is made out of time 1012.10.7 Arbitrator has impossibly short period to make award within time limit

set down in lease 1052.11 Underlying contract, scope of 106

2.11.1 Contract is frustrated; does arbitration clause survive? 1062.11.2 Contract void "ah initio"—severability of arbitration clause 107

3 A R B I T R A T O R 113

3.1 Arbitrator or expert 1133.1.1 Where both parties are lay people and unlikely to adduce satisfactory

evidence 1133.1.2 Where a tenant wanted an expert not an arbitrator 114

3.2 Authority of 1153.2.1 Party questions arbitrator's authority unilaterally to set date for prelimi-

nary meeting 1153.2.2 Arbitrator directs a party to be represented at a meeting of experts 116

3.3 Death of 1183.3.1 Arbitrator dies during interlocutory stage 1183.3.2 Arbitrator dies during a long hearing 121

3.4 Examination by 1223.4.1 Respondent accuses arbitrator of adopting an inquisitorial role 1223.4.2 When the parties agree that the arbitrator can act inquisitorially 126

3.5 Functus offtcio 1293.5.1 Joint arbitrators disagree and umpire appointed 1293.5.2 Prior disclosure of contents of award to one party 1313.5.3 Losing party telephones arbitrator 133

3.6 Independent advice 1333.6.1 Arbitrator decides it necessary to consult a third party 133

3.7 Jurisdiction 1353.7.1 Challenge of arbitrator's jurisdiction at commencement of hearing 1353.7.2 Arbitrators have no power to decide their own jurisdiction 1373.7.3 Threat of injunction against arbitrator on grounds of no jurisdiction 1393.7.4 Dispute in excess of jurisdiction 1463.7.5 Did arbitrator have jurisdiction in dispute under ICE contract when

question of reference of that dispute to engineer for his decision is disputed? 1473.7.6 Respondent asserts that the claimant has failed to serve a notice to refer as

required by the contract 149

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3.7.7 Respondent asserts that arbitrator has no jurisdiction due to an oralagreement to refer the dispute to an official referee as arbitrator 151

3.7.8 Appointed as arbitrator instead of independent expert 1533.7.9 Whether conduct amounts to a waiver or estoppel of objection to

jurisdiction 1543.7.10 The arbitrator has serious doubts about his jurisdiction 1553.7.11 Arbitrator's jurisdiction limited strictly to terms of arbitration agree-

ment 1523.8 Loss of documents 158

3.8.1 Loss or destruction of arbitrator's notes following conclusion of hearingand before award 158

3.8.2 Arbitrator's notes destroyed in car accident during hearing 1593.9 Mistake by 161

3.9.1 Arbitrator accused of making a mistake in reasoning 1613.10 Non-impartiality of 162

3.10.1 Arbitrator's personal knowledge of one party 1623.10.2 Arbitrator's close personal connection with parties' witnesses 1643.10.3 Party to arbitration seeks to have arbitration award set aside because of

arbitrator's previous professional relationship with other party 1653.10.4 Arbitrator discovers that his partner has previously acted for the

claimant 1673.10.5 Arbitrator enquires of health of one party and is accused of bias 1693.10.6 Friend of arbitrator appointed as expert 1693.10.7 Arbitrator accused of bias towards a party's advocate 171

3.11 Note taking 1723.11.1 General guidance 1723.11.2 Shorthand writer unable to take note 176

3.12 Own knowledge, use of 1773.12.1 Arbitrator holds contrary view to experts—how far can he use his own

knowledge? 1773.12.2 Arbitrator's personal knowledge of a recent relevant rent agreement 1803.12.3 Where arbitrator's special knowledge not able to be used 1833.12.4 Arbitrator's personal knowledge of the facts in dispute 1843.12.5 Caution exercised by an arbitrator in using his own knowledge and

experience 1853.12.6 Important to make parties aware of what is in the arbitrator's mind 1863.12.7 The arbitrator has received written closing submissions but neither party

has addressed a legal issue which the arbitrator considers is relevant 1873.12.8 Arbitrator—own knowledge in ex pane hearing 188

3.13 Post award involvement 1913.13.1 Successful party claims award does not cover all issues referred to

arbitration ,. 1913.14 Powers of 192

3.14.1 Can an arbitrator's decision on an interlocutory matter be challengedsuccessfully? 192

3.14.2 Power of an arbitrator to strike out case for want of prosecution 1943.14.3 Consideration to take into account in striking out for want of prosecution 1983.14.4 Respondent applies to arbitrator to strike out the claimant's claim for

want of prosecution 202

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3.15 Removal of 2123.15.1 Respondent seeks removal of arbitrator on grounds of bias and alleges

that the arbitrator ignored a legal point 2123.15.2 Parties wish to remove arbitrator 220Appendix "A"—Model Revocation Agreement 224Appendix "B"—New Agreement 2253.15.3 One party dissatisfied with arbitrator 2273.15.4 Respondent seeks removal of arbitrator on grounds of lack of impar-

tiality 2283.15.5 Is arbitrator's shareholding in company associated with one party a

ground for removal for misconduct? 2303.15.6 Arbitrator has connection with one of the parties 232

3.16 Resignation 2343.16.1 Arbitrator resigns and parties hold him responsible for costs thrown

away 234Appendix "A"—Model Agreement with Arbitrator on his resignation 2413.16.2 Three arbitrator tribunal. Resignation of one arbitrator at beginning of

hearing. Is termination of hearing and/or the proceedings inevitable? 242

4 A W A R D 245

4.1 Action on 2454.1.1 What effect has an arbitrator's award on subsequent High Court

proceedings? 2454.1.2 Effectiveness of an award in a "name borrowing" arbitration 247Appendix "A"—Model of a "Name Borrowing" Agreement 250

4.2 Appeal from 2524.2.1 Parties rights of appeal from award 2524.2.2 Where court will order further reasons 2534.2.3 Award appealed on ground that the arbitrator failed to state reasons in

sufficient detail 2584.3 Consent 259

4.3.1 Ensure that terms of settlement in consent award are within arbitrator'sjurisdiction 259

Appendix "A"—Typical Consent Award 2634.3.2 Arbitrator requested to countersign consent award the terms of which

caused him anxiety 2654.3.3 Arbitrator receives terms of settlement which appear to be ambiguous 2674.3.4 Disagreement as to terms of settlement 2694.3.5 Disagreement between the parties as to whether the dispute has been

settled 2704.4 Enforcement 270

4.4.1 Following an award in favour of the claimant the respondent goes toground 270

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

4.4.3 Enforcement of award out of time 2844.5 Errors—in or on the face of 285

4.5.1 Generally where an arbitrator can correct errors and where he cannot 2854.5.2 Claimant alleges fact on face of award shows arbitrator to have made an

error of computation 291

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4.5.3 Arbitrator's interim award fails to deal with two substantive Points ofClaim and awards a sum for liquidated and ascertained damages which, by commonagreement, is incorrect 293

4.5.4 Arbitrator admits inadmissible evidence 2944.5.5 When an error on the face of the award justifies giving leave to appeal 2954.5.6 Power of the arbitrator to correct error in award caused through

misunderstanding over offer to settle 2964.5.7 Arbitrator erroneously double-counted an item in making award 298Appendix "A"—Typical Corrective notice 300

4.6 Example of 3014.6.1 What form should the award take? 3014.6.2 Arbitrator's award on disregarding tenant's improvements in rent review 305

4.7 Interim 3094.7.1 Power to make interim award , 3094.7.2 Application for interim award in respect of costs of interlocutory

proceedings 3144.7.3 Award "Final Save as to Taxation of Costs" 3174.7.4 When an arbitrator should not have published an Interim Award 3184.7.5 Where an interim award may not be Final 320

4.8 Reasoned 3224.8.1 What is a reasoned award and when should it be given? 3224.8.2 The arbitrator's approach to writing a reasoned award 3264.8.3 Unrepresented party not clear whether they want reasons or not 3304.8.4 In a pre-AA '96 Act reference an unrepresented party requests reasons

after award is published 3334.8.5 Party requests retrospective reasons after award 3354.8.6 Request for reasons, not particularised 3364.8.7 Request for "open" reasons 3374.8.8 Where an arbitrator fails to give further reasons even though ordered to

do so by the court 3384.8.9 Extent to which reasons should be given for factual findings in a rent

review dispute 3394.8.10 When parties do not require a reasoned award 340Appendix "A"—Typical Agreement to dispense with reasons—s.52(l) . 343

4.9 Remitted 3434.9.1 Award remitted following procedural mishap 3434.9.2 Power of the arbitrator on remission of award 3454.9.3 Is the court's jurisdiction to remit award under s.22 AA '50 (s.68(3) AA

'96) unlimited? 3464.10 Specific performance 349

4.10.1 Arbitrator requested to award specific performance 3494.11 Timing of 351

4.11.1 Arbitrator's award in danger of being published after statutory time limit 3514.11.2 Where an arbitrator takes an inordinate time to make his award

following the conclusion of the hearing 3524.12 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 : 3635.1.1 Dispute between parties concerning accrual of cause of action 363

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5.2 Replaced by award 3665.2.1 When the cause of action is widened after reference and subsequently

replaced by award 3666 CLAIM DEFENCE AND COUNTERCLAIM 373

6.1 Claim—hopeless 3736.1.1 Points of claim indicate a hopeless case 3736.1.2 Claimant submits what may be a spurious claim 376

6.2 Defence—hopeless 3776.2.1 It becomes apparent at preliminary meeting that respondent has very

poor defence 3776.3 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 3837.1.1 Arbitration clause incorporated by reference averred to be invalid 3837.1.2 Arbitrator requested to make a peremptory order 3857.1.3 One party seeks to revoke the arbitrator's appointment 387

8 CONTRACT 3898.1 Is there a written? 389

8.1.1 Doubt raised as to whether a written contract exists or not 389Appendix "A"—Typical "ad hoc" written arbitration agreement 391

8.2 Existence of 3928.2.1 Dispute as to the existence of a contract 392

8.3 Not signed 3948.3.1 Work executed under contract not signed 394

8.4 Wrong, cited in pleadings 3958.4.1 Appointment made under one contract but Points of Claim refer to a

different contract 395

9 COSTS 397

9.1 Generally 3979.1.1 Award does not cover costs 3979.1.2 Arbitrator must act judicially in deciding costs 3989.1.3 Where one party alleges that the arbitrator has not excercised his

discretion judicially in dealing with costs 4009.1.4 Parties fail to address the arbitrator on costs before close of hearing 4019.1.5 Who should get costs if a Point of Claim is withdrawn before hearing

commences? 4029.2 Power to deal with 403

9.2.1 Where does the arbitrator's power come from? 4039.2.2 Parties request arbitrator to give an informal indication on costs 4059.2.3 Where one party wishes to defer determination of costs 406

9.3 What costs? 4079.3.1 Costs of the reference and costs of the award 4079.3.2 How to deal with court costs in arbitration 4099.3.3 Can an arbitrator deal with the court costs of determining a preliminary

point of law 4109.3.4 Application for costs of matters pleaded and subsequently admitted 411

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9.4 Follow the event 4139.4.1 What is the event? 4139.4.2 Identity of the successful party 416

9.5 Unusual award as to 4199.5.1 When the arbitrator is minded to depart from the usual rule of "costs

follow the event" 4199.5.2 Claimant awarded part of claim but directed to bear own costs and pay

substantial element of the respondent's costs. 4219.5.3 When costs do not "follow the event" 424

9.6 Interlocutory directions 4269.6.1 Generally 4269.6.2 Why an arbitrator should not link a cost order to the right to serve a

pleading 4299.6.3 What happens to interlocutory costs orders when an award is appealed? 4349.6.4. When interlocutory costs are paid in any event by the party who is

subsequently successful in the action and is awarded costs 4359.7 Costs—of a lay representative 437

9.7.1 Power to award costs of party where represented by a non-practisinglawyer or other unqualified person 437

9.8 Agreement between the parties as to costs 4409.8.1 Whether an agreement between the parties that they bear their own costs

is valid 4409.8.2 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 4439.8.3 Parties agree settlement terms but fail to include arbitrator's fee 444

9.9 Where there is a counterclaim 4459.9.1 What now is the event? 4459.9.2 Costs where the claimant wins the claim but loses the counterclaim 447

9.10 Where there are offers to settle 4489.10.1 The effect of a "sealed offer" on costs 4489.10.2 Rent review costs, close Calderbank offers, discretion acting judicially 4509.10.3 The effect of a change of pleadings upon an offer to settle 4569.10.4 The reasonableness of refusing an offer in a multi-party action 4589.10.5 Offers where there is a claim and a counterclaim 4609.10.6 Where there is an offer and a counter-offer 4619.10.7 Relevance of offer, counter-offer and withdrawal of offer in exercising

discretion as to costs 4629.10.8 Where doubt exists over the event for which both a sealed and an "open"

offer received 4649.11 Applications to court 466

9.11.1 How binding is a party's standard terms to limit his costs? 4669.11.2 The arbitrator fails to make an award as to costs 4679.11.3 Appeal against an unusual award as to costs 4699.11.4 How the court can assist where one party claims that the arbitrator's fees

appear to be excessive 4709.11.5 Arbitrator refuses to deliver award until fees are paid 473

9.12 Security for the parties' costs 4749.12.1 Power of arbitrator to order security for costs 474Appendix "A"—Typical "ad hoc" Arbitration Agreement 4819.12.2 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

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9.12.3 Security for costs in a "documents only" arbitration 4889.12.4 Security for costs under rules 4899.12.5 The procedure the arbitrator should follow in dealing with security for

parties' costs 491Appendix "A"—Typical direction for procedure for dealing with security for

costs application 4949.12.6 The claimant fails to comply with the arbitrator's direction for affidavit

evidence 4969.12.7 The criteria the arbitrator should apply in deciding whether to order

security and, if so, how much and in what form? 497Appendix "A"—Typical direction ordering security for costs 5099.12.8 The respondent makes an application to increase security previously

ordered 511Appendix "A"—Typical direction ordering an increase in security for costs

previously awarded 5139.12.9 How to deal with a security for costs application where either party could

be the claimaint 5149.12.10 Can an arbitrator consider sealed offers when considering a security for

costs application? 5159.12.11 Where a party fails to comply with an arbitrator's order for security 5159.12.12 When the costs of a security for costs application might not "follow the

event" 5179.12.13 What to do with money put up as security for costs 518

9.13 Recoverable costs 5199.13.1 Arbitrator asked to exercise power to cap costs 519Appendix "A"—Typical order for directions for limiting the parties' recoverable

costs—s.65 AA '96 5279.13.2 An arbitrator decides to exercise his discretion to tax the parties' costs 5289.13.3 Parties cannot agree on the form of Bill for arbitrator's settlement of

costs 530Appendix "A"—Typical direction for Settlement of Costs 5329.13.4 Procedure to follow where arbitrator to tax the parties' costs 5349.13.5 Procedure to follow where arbitrator is to determine the parties'

recoverable costs 544

10 DAMAGES 553

10.1 Assessment of 55310.1.1 Generally 55310.1.2 How to decide when a party is liable for damages 557Appendix "A"—Flow chart showing how to analyse a Point of Claim or

counterclaim 56110.1.3 Where damages assessed on same basis in contract as in tort 56210.1.4 Damages claimed for defective work executed some years before 56710.1.5 Measure of damages where there is a third party settlement 568

10.2 Quantum of 56910.2.1 Liquidated damages linked to sectional completion and whether notice

is a condition precedent to deducting them 56910.2.2 When employer wrongfully repudiates contract 57710.2.3 Loss and expense claims clarified 580

10.3 For distress and inconvenience 58610.3.1 Power to award general damages in building cases 586

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11 D E C L A R A T O R Y R E L I E F 595

11.1 Arbitrator's power to award 59511.1.1 Arbitrator's power to make a declaratory award 595

12 D I R E C T I O N S 599

12.1 General 59912.1.1 The arbitrator's power to give directions 59912.1.2 Typical direction concerning the preliminary meeting 601Appendix "A"—Typical letter to parties re appointment and checklist for

preliminary meeting 602Appendix "B"—Typical Order for directions confirming date, time and venue

for Preliminary Meeting 606Appendix "C"—Typical agenda for a preliminary meeting under JCT Arbi-

tration Rules 607Appendix "D"—Typical Direction following preliminary meeting—JCT Arbi-

tration Rules 61612.2 Interlocutory 624

12.2.1 Extending time for service of party's statement 624Appendix "A"—Direction extending time for service of statement 62712.2.2 Amendment of a party's statement 628Appendix "A"—Direction consenting to request to amend pleadings 62912.2.3 Notice under the Civil Evidence Act 1995 630Appendix "A"—Typical direction covering notice under the Civil Evidence Act

1995 63212.2.4 When a pre-hearing review should be held 633Appendix "A"—Typical Direction convening a pre-hearing review meeting 635Appendix "B"—Typical agenda for pre-hearing review meeting 636Appendix "C"—Typical Direction following pre-hearing review meeting—post

AA '96 63812.2.5 Arbitrator not bound to give reasons for interlocutory directions and

court cannot review or revise them 64112.2.6 Arbitrator not obliged to give reason for interlocutory decisions but does

so voluntarily 64212.2.7 Loss and expense claim in construction contract—when and to what

extent should the arbitrator order fully particularised details of his claim? 64412.3 Arbitrator's, non-compliance with 647

12.3.1 Generally 64712.3.2 Failure to serve claim as directed 652Appendix "A"—Peremptory Order following failure to serve a statement of

case 65412.3.3 Failure to serve Defence as directed 65512.3.4 Failure by a party to reply to a request for Further and Better

Particulars 655Appendix "A"—Typical Direction following failure to comply with a request for

Further and Better Particulars 65712.3.5 Failure of party to comply with Direction for Specific Discovery ; 659Appendix "A"—Typical Peremptory Order for Specific Discovery 66112.3.6 Unless Order re failure to serve witness statements 662Appendix "A"—Typical Unless Order following failure to serve witness

statements . . 663

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12.3.7 Respondent refuses to waste his time defending a sham claim 664Appendix "A"—Typical Direction warning of possible ex parte hearing 666

12.4 Amendment of 66812.4.1 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 66913.1.1 How to determine authenticity of possibly admissible evidence 669

13.2 Discovery of 67013.2.1 Restricted discovery during determination of preliminary issue 67013.2.2 Request by parties for early discovery 67113.2.3 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 67213.2.4 Unreasonably wide request for discovery 67413.2.5 Arbitrator takes independent legal advice on order for discovery 675Appendix "A"—Typical Order for Directions for Discovery of Documents 67713.2.6 Specific Discovery 678Appendix "A"—Typical Order for Directions for Specific Discovery 68113.2.7 Very late request for further discovery 68313.2.8 Application for discovery during the course of the hearing 68413.2.9 Court no longer has power to order discovery in arbitration 68513.2.10 How far does discovery need to go on computer disks? 68613.2.11 The extent to which discovery should be ordered by the arbitrator 68713.2.12 The restriction on documents obtained in discovery 68813.2.13 Does a party have to disclose all copies of a particular document

following an order for discovery 68913.3 Inspection of 690

13.3.1 Documents destroyed, therefore not available for inspection 69013.4 Only 691

13.4.1 Arbitrator requires further submissions in order to determine thedispute 691

13.4.2 Privileged document accidentally included and essential documentomitted 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 69613.4.4 Whether an arbitrator should admit a further submission after close of

Pleadings? 69713.4.5 How to react to a third party's attempted interference with a reference 69713.4.6 Where documents contain a claim which arises following the application

to refer 69913.4.7 Where burden of proof can shift to the respondent 70013.4.8 Where a similar fact evidence might be admissible in a "documents only"

arbitration 70213.4.9 Following an award the unrepresented claimant accuses the arbitrator of

failing to note crucial evidence 70313.4.10 Should an arbitrator order a claimant to provide security for costs in a

"documents only" reference? 70513.4.11 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

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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 711Appendix "A" Model Award 713

13.5 Production of 71713.5.1 Introduction at hearing of documents not previously referred to 717

13.6 Reading of 71813.6.1 Extent to which the arbitrator should read the hearing bundle 718

13.7 Statements in 71913.7.1 Arbitrator received confidential document from claimant complaining

of respondent 719

14 E V I D E N C E 721

14.1 Admissibility of 72114.1.1 Generally—Arbitrator must admit all admissible evidence 72114.1.2 Is evidence from another unrelated dispute admissible in the subject

dispute? 72414.1.3 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 72814.1.4 Power of arbitrator to limit admissible evidence 73014.1.5 Admissibility of unsigned witness statements where party evinces an

intention of taking no further part in the proceedings 73214.1.6 Admissibility of documents inadvertently missed in discovery 73414.1.7 The effect of s.34(2)(f) AA '96 (Evidence—admissibility, relevance and

weight) in rent review arbitrations 73514.2 Estoppel 737

14.2.1 Cause of action estoppel defence may not always apply 73714.2.2 Whether issue estoppel can be successfully pleaded 73814.2.3 A party seeks to estop the other party from re-opening, with the

arbitrator, an issue on which he asserts previous agreement was reached 74114.3 Expert 742

14.3.1 Generally 74214.3.2 One party appoints an expert, the other party fails to do so 75614.3.3 Expert appointed by the arbitrator 759Appendix "A"—Standard direction on expert evidence 76314.3.4 Using a second expert witness • 76414.3.5 Admissibility of expert evidence 76514.3.6 Whether the arbitrator has power to order the disclosure of an expert's

report 76714.3.7 Expert witness dies just before the hearing : , 77014.3.8 Distinguishing between evidence of witnesses of fact and expert

witnesses 77214.3.9 Expert evidence in complete contradiction 77314.3.10 Expert witnesses unable to agree on any matters of fact in dispute 77614.3.11 Neither expert's evidence preferred by the arbitrator 77914.3.12 Party prompts own expert while giving evidence 78014.3.13 Problem of hearing expert evidence on lengthy Scott Schedule 78114.3.14 The respondent makes an application during the hearing to have his key

witness of fact called as an expert 78214.3.15 An ex-employee wishes to appear as an expert witness for the party who

previously employed him 784

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14.3.16 Expert did not produce his own backup material 78514.3.17 Expert deviates from his report and argues merits of his party's case 78714.3.18 Expert omits to deal with material facts 78914.3.19 Determination—taxation of incompetent expert's costs 79014.3.20 Expert is clearly partisan 79114.3.21 Expert evidence contradicts evidence that the expert gave in a previous

arbitration 79514.3.22 An expert includes evidence in his report from another expert 79614.3.23 The tribunal appointed expert 798Appendix "A"—Typical alternative agenda items for the option of a tribunal

appointed expert 80214.4 Fresh 803

14.4.1 Arbitrator's failure to consider fresh evidence before publishing awardin "documents only" reference . 803

14.4.2 Party attempts to admit fresh evidence after conclusion of hearing butbefore award 805

14.4.3 Party submits fresh evidence to the arbitrator after publication of hisfinal award 806

14.4.4 Party no opportunity of making submission to arbitrator on freshevidence after hearing the facts 807

14.4.5 After granting an adjournment request to the claimant to seek legaladvice on a fresh point, the claimant fails to make any further written submissions 809

14.5 Hearing 81014.5.1 A key witness who cannot be available for the hearing seeks to give

evidence to the arbitrator in the absence of the other party 81014.5.2 Arbitrator receives evidence in absence of both parties 81214.5.3 Arbitrator determines dispute without hearing either party 81214.5.4 The admissibility of documents into an "exparte" hearing not previously

discovered 81314.5.5 Witness's evidence varies from his written proof 814

14.6 Hearsay 81514.6.1 Generally, What is hearsay evidence? 81514.6.2 Hearsay evidence is now, prima facie, admissible unless parties agree

that the strict rules of evidence are to apply 81714.6.3 Claimant requests consent to refer to a letter rather than calling the

writer 82114.7 Privilege 821

14.7.1 A claim of legal professional privilege 82114.7.2 Litigation privilege and non-practising legally qualified advisers 82314.7.3 What "privilege" can be claimed by non-legally qualified advisers? 82614.7.4 Privilege in rent review arbitrations 82914.7.5 Privileged material referred to at a preliminary meeting 83214.7.6 Refusal to disclose confidential documents 83314.7.7 Argument adduced at hearing from a privileged document 83514.7.8 Where a "without prejudice" offer may not be privileged 83614.7.9 Deliberate disclosure of a "without prejudice" letter to the arbitrator? 83714.7.10 Public interest claimed as privilege 841

14.8 Proofs of 84414.8.1 Party's counsel objects to exchange of proofs of evidence 84414.8.2 How exchanged statements of witnesses of fact may be used at a hearing 845

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14.8.3 Parties ordered to exchange witnesses' proofs of evidence; one party failsto do so 847

Appendix "A"—Unless Order—Order for Directions 84914.8.4 Parties ordered to exchange witnesses' proofs of evidence. One party

fails to do so, even after threat of debarment 850Appendix "A"—Unless Order—Order for Directions No 19 853

14.9 Relevant 85414.9.1 Distinction between relevance and weight 85414.9.2 Claimant fails to deal with what the arbitrator considers is relevant point 85514.9.3 Counsel questions relevance of tenant's accounts in rent review dispute 856

14.10 Similar fact 85914.10.1 Application for discovery of similar fact evidence 859

15 E X P E R T D E T E R M I N A T I O N 863

15.1 Expert determination 8631.1 Whether person is appointed as an arbitrator or an independent expert? 8631.2 When can a determination by an expert be successfully challenged? 8651.3 Independent expert or arbitrator? 8671.4 The independent expert not bound to act judicially 8691.5 Determination in the absence of a dispute 8711.6 Can an independent expert unilaterally decide to determine a preliminary

issue? 8721.7 Should an independent expert give reasons for his determination? 872

16 FEES 875

16.1 Generally 87516.1.1 Generally 875Appendix "A"—Arbitrator's Terms 888Appendix "B"—Time Sheet 890Appendix "B"—Expense Sheet 891Appendix "C"—Typical Fee Statement 892

16.2 Non agreement of 89516.2.1 One party agrees to arbitrator's fees, the other does not 89516.2.2 Neither party responds to arbitrator's request to sign terms; the

arbitrator subsequently seeks a commitment fee 89716.2.3 Party considers arbitrator's fees too high 89916.2.4 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 otherparty? 901

16.3 Non payment of 90316.3.1 Parties agree arbitrator's terms at preliminary meeting but fail to return

them signed. They also fail to pay interim fees subsequently requested 90316.3.2 Cheque for interim fees is not honoured 91116.3.3 A hearing becomes protracted and runs considerably over the time set

aside by the arbitrator; consequently he finds himself considerably exposed for feesoutstanding which he may not recover for several months 912

16.3.4 Payment of arbitrator's out-of-pocket expenses 91516.3.5 One party offers to pay half of the arbitrator's fees only on collection of

award 91616.3.6 Arbitrator publishes award and parties do not collect 918

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16.3.7 Parties settle, but make no agreement concerning the arbitrator's feesand neither accepts liability for them 919

Appendix "A"—Typical points of claim 92316.4 Arbitrators, security for 927

16.4.1 Generally 92716.4.2 Failure by one or both parties to comply with a direction of the arbitrator

to provide security for his fees and expenses 931Appendix "A"—Typical Direction for procedure for dealing with the arbi-

trator's security for costs 933Appendix "B"—Typical Peremptory Order following failure to provide security

when directed 93516.4.3 What to do with a substantial sum lodged with the arbitrator as security

for his costs 93616.4.4 Arbitrator, anticipating exparte hearing, sets level of security for his fees

and expenses. Respondent unexpectedly turns up. Claimant insists that respondentbe 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 forarbitrator's fees and expenses—all previously provided by the claimant. Arbitratorso directs. Respondent does not comply 938

16.4.6 Security for arbitrator's fees after company put into liquidation 939

17 H E A R I N G 941

17.1 Adjournment of 94117.1.1 Parties jointly request adjournment of hearing 94117.1.2 A hearing is set and one or both parties fail to turn up 94217.1.3 Adjournment requested to consider supplementary expert's report 943

17.2 Agreed bundle 94417.2.1 No agreed bundle delivered to the arbitrator 94417.2.2 Parties fail to prepare agreed bundle and produce their own 946

17.3 Evidence 94717.3.1 When relaxation of strict rules of evidence is permissible 94717.3.2 Counsel constantly objects to leading questions 949

17.4 Interventions 95017.4.1 Arbitrator stops counsel after long-winded submission 95017.4.2 When it is permissible for an arbitrator to interrupt counsel 95217.4.3 Arbitrator interrupts counsel indicating his acceptance of point being

made 95417.5 Order of 956

17.5.1 Respondent seeks to interpose his expert earlier into the hearing 95617.6 Party's right to be present throughout 957

17.6.1 Respondent consistently rude to the arbitrator 95717.6.2 Arbitrator excludes objectionable party 959

17.7 Postponement of 96017.7.1 Postponement requested due to non-availability of Counsel 96017.7.2 Respondent wishes to postpone start of hearing 961

17.8 Presence of a stranger 96317.8.1 Attendance of person not involved in dispute 96317.8.2 Confidentiality of arbitral proceedings 964

17.9 Right to have '" 96817.9.1 One party wants to have oral hearing the other wants "documents only" 968

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17.10 Speed of progress at 96917.10.1 Arbitrator controls speed of progress at hearing 969

17.11 Unequal representation at 9707.11.1 Unequal representation at hearing 970

18 I N J U N C T I O N 973

18.1 Arbitrator's power to grant 97318.1.1 Employer requests the arbitrator to grant an interim injunction against

an obstructive contractor 97318.1.2 Power of the court 975

19 INSPECTION 977

19.1 Arbitrator's power to order 97719.1.1 Whether arbitrator has power to order inspection of property which is

the subject of the reference 97719.1.2 Arbitrator wishes to inspect a model of the property which is the subject

of the reference 97819.1.3 When an arbitrator should inspect the property subject of the dispute 980

19.2 Difficulties arising from 98219.2.1 Requirement to inspect frustrated by claimant 98219.2.2 One party requests arbitrator to inspect property: the other party objects

so the arbitrator offers to use the visit to take evidence 98319.2.3 Respondent ignores all arbitrator's directions and subsequently denies

access for arbitrator's inspection 98419.3 Rights of parties at 985

19.3.1 The rights of parties at an inspection compared with rights at the hearingitself 985

20 INTEREST 989

20.1 General and special damages 98920.1.1 Whether the arbitrator has power to award interest by way of general

damages for late payment of debt 98920.2 Special damages 997

20.2.1 Interest incurred as a direct loss and/or expense or as special damages 99720.3 Discretion under AA'96 999

20.3.1 How s.49 AA '96 has changed the arbitrator's discretion to awardinterest under S.19A AA '50 999

20.3.2 Whether there is a conflict between the arbitrator's discretion under s.49AA '96 and a contractual right to interest? 1005

20.4 Finance charges 100620.4.1 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 compoundinterest basis 1006

20.5 Sums due and unpaid, on 100920.5.1 Whether the arbitrator has power to award interest on sums paid late but

before the arbitration commences 100920.5.2 Whether the arbitrator has power to award interest on sums found by

him to be under-certified 101020.5.3 The distinction between mere counterclaims and counterclaims which

also constitute defences of abatement or set off 1013

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20.6 Not pleaded 101620.6.1 Neither party claims interest 1016

20.7 Where there is an offer to settle 101720.7.1 Where interest can have a significant effect 1017

21 SERIOUS I R R E G U L A R I T Y 1019

21.1 Serious irregularity—misconduct 101921.1.1 Generally 101921.1.2 Thomasina researches cases of "Misconduct" 102521.1.3 Cases of "Misconduct" in Construction Cases 103021.1.4 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.24sanctions 1042

21.2.1 Failure to disclose documents to both sides; admissibility of evidence 104221.2.2 Whether to refuse adjournment could be said to be not properly

conducting the proceedings 104621.2.3 Arbitrator comes to view contrary to evidence adduced before him 104721.2.4 Arbitrator fails to deal with interest; is this a serious irregularity? 104821.2.5 When an injudicious remark of the arbitrator can amount to misconduct 1049

21.3 Serious irregularity—challenging the award 105021.3.1 Failure by the tribunal to comply with s.33 (general duty of tribunal)

(s.68(2)(a)) 105021.3.2 Arbitrator exceeds his powers by giving order for general discovery

when the rules permit only specific discovery (s.68(2)(b)) 105621.3.3 Failure by the arbitrator to conduct the proceedings in accordance with

the procedure agreed by the parties (s.68(2)(c)) 105721.3.4 Failure by the tribunal to deal with all the issues that were put to it

(s.68(2)(d)) 105921.3.5 Uncertainty or ambiguity as to the effect of the award (s.68(2)(f)) 106021.3.6 An award is obtained by fraud (s.68(2)(g)) 106121.3.7 An award is made without being dated or stating the seat of the

arbitration in contravention to s.68(2)(h) AA '96 106221.3.8 An arbitrator admits to an irregularity in the award (s.68(2)(i) AA '96) 1062

21.4 Misconduct—immunity from suit 106321.4.1 Of the arbitrator 106321.4.2 Of the Appointing Body 1067

22 OATH 1073

22.1 Taking of 107322.1.1 Difficulty arises at hearing over form of sacred book 107322.1.2 Witness privately prompted by his advocate whilst still under oath 107522.1.3 Witness clearly lying under oath 1076

23 OFFER TO SETTLE 1079

23.1 Open 107923.1.1 Arbitrator sent a copy of an "open" offer 107923.1.2 Should an open offer attract interest? 1080

23.2 Sealed 108023.2.1 Arbitrator asks parties if a sealed offer has been made 108023.2.2 Existence of "secret" offer disclosed to arbitrator 1081

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23.2.3 Failure to disclose the existence of a sealed offer before award 108323.3 Treatment of costs when 1085

23.3.1 When the sealed offer exceeds the net amount awarded 108523.4 Without prejudice 1087

23.4.1 Disclosure of "without prejudice" offer 108723.4.2 Arbitrator sent a copy of a "without prejudice" offer 1089

24 PARTIES 1091

24.1 Assignment of claim 109124.1.1 Receiver of claimant company assigns to a third party right to arbitrate a

dispute 109124.2 Bankruptcy of 1092

24.2.1 Party is put into bankruptcy during arbitration 109224.3 Death of 1094

24.3.1 Party dies during reference 109424.4 Disputes as to 1098

24.4.1 When the claimant believes that there are joint respondents and therespondent avers that there is a third party to the contract which the claimant denies 1098

24.5 Illness of 110224.5.1 Party requests indefinite deferment due to illness 1102

24.6 Liquidation of • 110324.6.1 Power of arbitrator to proceed when party put into compulsory

liquidation 110324.6.2 Party in liquidation; original assignor's right to arbitration 110424.6.3 Claimant goes into creditors' voluntary liquidation during reference 1105

24.7 Loss of confidence in arbitrator 110724.7.1 During a hearing a party loses confidence in ability of the arbitrator to

grasp satisfactorily the problems being arbitrated 110724.8 Personal contacts with 1108

24.8.1 Arbitrator found to have regular contact with one party 110824.9 Receivership, in 1110

24.9.1 Party put into receivership during arbitration 111024.10 Reluctant respondent 1111

24.10.1 Respondent fails to acknowledge arbitrator's letters 111124.10.2 Respondent persistently fails to comply with arbitrator's directions 111524.10.3 Respondent engaged in delaying tactics 1115

24.11 In repudiatory breach 111724.11.1 When a respondent seeks a declaration that the claimant has repudi-

ated the Arbitration Agreement 111724.12 Impecuniosity of 1119

24.12.1 The respondent (counter-claimant) admits to being totally out of funds 111924.13 Role reversal 1120

24.13.1 Respondent becomes claimant 112024.13.2 Tenant avers that he, not the landlord, should be the claimant 1121

24.14 Written Agreement, of 112124.14.1 One party attempts to resile from an earlier agreement 1121

25 POINTS OF LAW 1125

25.1 Preliminary issue on . 112525.1.1 Preliminary issue of point of law 1125

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25.1.2 Party asks arbitrator to apply to the High Court to determine point of law 113025.1.3 Arbitrator faces difficult legal argument 113125.1.4 Where an arbitrator may be aware of legal authority not cited by either

side 113325.1.5 Duty of counsel when a difficult point of law arises 113325.1.6 Where no authority cited in support of legal contentions 113525.1.7 Landlord avers a typing error in the notice of review, which the tenant

has signed and returned 113625.1.8 Differing interpretations arise out of a rent review clause 113825.1.9 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 114126.1.1 Formal pleadings or statement of case? 1141

26.2 Amendment of 114626.2.1 Generally 1146Appendix "A"—Typical Order for Directions granting an application to amend

Pleadings 115026.2.2 Late amendment of pleading necessary to include counterclaim 115226.2.3 Claimant requests amendment of pleadings during hearing 115326.2.4 Late request to cover continuing loss of pleaded item 1155

26.3 Fraud in 115726.3.1 Suggestion of fraud in pleadings 1157

26.4 Further and better particulars 115826.4.1 Generally 1158Appendix "A"—Typical requests for Further and Better Particulars of defence

and counterclaim 1162Appendix "B"—Unless order in respect of failure to reply to Further and Better

Particulars 116426.4.2 How to deal with requests for Particulars to which the asking party

declines to reply 116626.5 Late service of 1167

26.5.1 Extending the timetable for service of pleadings 116726.6 Not properly particularised 1168

26.6.1 Claim in pleadings in "global" terms 116826.6.2 Arbitrator directs how inadequate pleadings should be remedied 117326.6.3 Questions put to the parties 1175Appendix "A"—Typical Order re Notice to Admit Facts 1179Appendix "B"—Re typical request for Interrogatories (Questions from the

arbitrator) 118026.7 Re-service of 1181

26.7.1 Party's newly appointed solicitor requests consent to Re-Serve Defenceand Counterclaim previously inadequately served by lay representative 1181

Appendix "A"—Typical Direction granting the respondents application tore-serve its defence 1184

Appendix "B"—Typical Direction seven-day notice to respondent re failure toserve defence 1186

26.8 Without prejudice 118726.8.1 Pleadings alleged to be "without prejudice" 1187

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27 PROCEEDINGS 1 1 8 9

27.1 Abandonment of reference27.1.1 Absentee respondent, working and resident overseas, refuses to appoint

representative. Claimant elects to start arbitration proceedings and subsequentlyclaims abandonment 1189

27.2 Conduct of 119127.2.1 How the Arbitration Act 1996 has changed the approach of the parties

and the arbitrator 119127.2.2 The parties rule—O.K.! 119727.2.3 Parties actively co-operate with the arbitrator in devising a cost-effective

procedure to resolve this dispute 120627.2.4 Consideration of the most cost effective procedure 120827.2.5 The preliminary meeting and beyond 121627.2.6 Parties disagree on form of proceedings 122027.2.7 Requirement to follow agreed procedure 122327.2.8 Doing something contrary to the parties' expectations in a written

representations rent review procedure 1224Appendix "A"—Typical opening letter to the parties 1226Appendix "B"—Typical follow up letter 1228Appendix "C"—Typical preliminary meeting agenda 1229Appendix "D"—Order for directions on documents only with or without a

preliminary meeting 123127.2.9 Wot, no preliminary meeting? 1234Appendix "A"—Typical letter to lay parties where arbitrator decides to dispense

with preliminary meeting 1236Appendix "A"—List of matters which need to be covered by my directions to the

parties 1239Appendix "B"—Typical abbreviated terms for a simple dispute with lay parties 1240

27.3 Equitable determinations 124227.3.1 Parties consider effect of adopting an equity clause 1242

27.4 Exclusion agreements, entering into 124827.4.1 Party queries effect of entering into an exclusion agreement 1248Appendix "A"—Typical Agreement to exclude the jurisdiction of the court

ss.45(l) and 69(1) 125227.4.2 Party asks if exclusion agreement applies to interim award 1253

27.5 "Exparte" 125427.5.1 Generally—when may an arbitrator proceed "ex parte" and what

principles should he observe? 125427.5.2 Respondent fails to communicate with arbitrator following withdrawal

of instructions from solicitor 125827.5.3 The reluctant respondent's bluff is called 126027.5.4 The respondent appears, without warning, on the first day of the

hearing 126227.5.5 The respondent says he will not attend the hearing due to insufficient

time to prepare 126327.5.6 Respondent fails to appear at the hearing. The claimant attempts to

introduce evidence in his absence . 126527.5.7 Dealing with a counterclaim and costs at an "ex parte" hearing 1266

27.6 Proceedings—multi-party arbitrations 126727.6.1 The employer seeks to commence an arbitration against a nominated

subcontractor and against the main contractor in the same action 1267

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27.6.2 Application made to consolidate two arbitrations 126827.6.3 The arbitrator's power to consolidate or order concurrent hearings in

related disputes 127427.6.4 What alteration is necessary to normal procedures when joinder

provisions are invoked? 1281Appendix "A"—Extract from typical Direction in joinder cases 128427.6.5 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 hisjust entitlement 1286

27.6.6 Difficulties and costs where separate arbitration clauses in relatedcontacts 1287

27.7 Stay of, overlap with litigation 128827.7.1 Limitations of arbitrator's consideration of overlapping issues when

arbitration and litigation proceed in parallel 128827.7.2 Concurrent proceedings—inter-relationship with court proceedings 129227.7.3 Whether a court action should be stayed where a writ is issued as a

pre-emptive strike before arbitration proceedings can begin? 129627.7.4 When a step taken in litigation may justify a stay of arbitration

proceedings 129727.7.5 Refusal to operate an Arbitration Agreement—can a party go to court? 1298

27.8 Substantive and procedural law 130027.8.1 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 130528.1.1 Claimant makes application to the arbitrator to release property,

retained by the respondent, which is subject of the reference 130528.1.2 Respondent threatens to sell goods which are the subject of the reference 1307

29 RECTIFICATION 1311

29.1 Contract, of 131129.1.1 Power of arbitrator to deal with rectification of the contract 131129.1.2 Power of arbitrator to order damages resulting from rectification of

contract 1313

30 R E P R E S E N T A T I O N 1315

30.1 Party in Person, Assistance of 131530.1.1 Right of party appearing in person to have assistance of a McKenzie

friend 131530.1.2 Extent to which the arbitrator assists an unrepresented party 1316

30.2 Poor Quality 131730.2.1 Counsel presenting case in incompetent fashion 131730.2.2 Parties' representatives have little or no idea of arbitration procedure 1318

30.3 Legal 131930.3.1 "Fit for Counsel" 1319Appendix "A"—Typical extract from Order for Directions 132330.3.2 Solicitor withdraws before the hearing 132430.3.3 Counsel appears at hearing without warning 1324

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31 SPECIFIC P E R F O R M A N C E 1327

31.1 Interim award for 132731.1.1 Claimant seeks order for specific performance from unique specialist

contractor 1327

32 SUBMISSIONS 1331

32.1 Closing 133132.1.1 Advocate's closing submissions 1331

32.2 Copied to both sides 133432.2.1 Documents received by arbitrator not sent to other side 1334

32.3 Opening 133532.3.1 Counsel's opening submissions 1335

33 V A L U E A D D E D TAX 1339

33.1 Value added tax 133933.1.1 Generally 133933.1.2 The VAT position when a party settles 1345Appendix "A"—Agreed Minutes of Meeting between HM Customs and Excise

(VAT Office) and Law Society—23 October 1991 135033.1.3 The treatment of VAT and damages and "offers" to settle 1354

34 WITNESSES 1357

34.1 Appearing for both sides 135734.1.1 Both parties wish to call same witness 1357

34.2 Compellability to give evidence 135834.2.1 Generally 135834.2.2 Witness called by claimant refuses to attend hearing. Respondent alleges

that this witness is central to his case 136134.3 Illness of 1362

34.3.1 Persistent interruptions to hearing through witness's incapacity 136234.4 Leading questions and prompting witness 1363

34.4.1 When leading questions should be allowed and when prompting awitness is unacceptable 1363

34.5 Hostile/objectionable behaviour 136434.5.1 When a witness's behaviour in giving evidence becomes unacceptable 1364

34.6 Order of 136634.6.1 Counsel requests that expert be called before witnesses of fact 1366

34.7 Perjury, committed by 136734.7.1 Witness clearly lying under oath and solicitors' duty to ensure the truth

of witness statements 136734.8 Proof of evidence 1368

34.8.1 Generally 136834.9 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

TABLE OF CONTENTS

35.1.1 Generally 137335.2 Determination of preliminary point of jurisdiction 1375

35.2.1 Generally 137535.2.2 Challenging an arbitrator's jurisdiction—ss.32 and 73 AA '96 1377

35.3 Challenging the award jurisdiction 137835.3.1 Generally 137835.3.2 Arbitrator awards a longer extension of time than is asked for—s.68(l)

and (2) AA '96 138135.4 Determination of preliminary point of law 1382

35.4.1 Generally 138235.4.2 Preliminary issue—the arbitrator's powers—ss.45 and 34 1384

35.5 On point of law 138535.5.1 Is the appeal within the time limits set down in the Act? 138535.5.2 Where the appeal is out of time 138735.5.3 Generally 139035.5.4 Appealing on a point of law 139935.5.5 Limitations on application to the court—s.70(2)(b) 140235.5.6 Parties pre-consent to appeal 140335.5.7 The court's discretion to grant leave to appeal in respect of a question of

law not argued before the arbitrator 140535.5.8 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 14091.2 Arbitration Act 1975 14291.3 Arbitration Act 1979 14311.4 Arbitration Act 1996 14371.5 Civil Evidence Act 1968 14841.6 Civil Evidence Act 1972 14901.7 Civil Evidence Act 1995 14931.8 Agricultural Holdings Act 1986 15051.9 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) 15513.2 CIArb Short Form Arbitration Rules 1991 15583.3 CIArb Guidelines for Supervised Settlement Procedure (1990 Edition) 15613.4 CIArb New Consumer Dispute Resolution Scheme 15653.5 CIArb Standard Consumer Arbitration Scheme Guidance Notes for the Parties 15753.6 Arbitration Scheme for the Association of British Travel Agents 15793.7 Schedule of Administered Schemes 15833.8 Guidelines of Good Practice for Arbitrators 15853.9 The LMAA Terms (1997) 15883.10 The LMAA Small Claims Procedure (1994) 16003.11 The LMAA FALCA Rules (1996) (Fast and Low Cost Arbitration) 1604

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3.12 FOSFA Rules of Arbitration and Appeal 1990 16093.13 GAFTA Arbitration Rules No. 125 16163.14 Draft ICC Rules 1997 16273.15 Draft New LCIA Rules 1997 16383.16 The JCT Arbitration Rules (18 July 1988) 16513.17 Draft Proposed Amended JCT Rules 1997 16593.18 JCT Contracts, Sub-Contracts and Arbitration Rules—Note to Users 16703.19 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) 16753.21 The Construction Industry Model Arbitration (CIMA) Rules 1686

Index 1705