24 September

Luncheon Meeting, Croydon

Members of the Branch gathered in the Maple Room at the Fairfield Halls in Croydon on Thursday 24th September for a lunchtime meeting, an innovation for the Branch introduced by this year's Chairman, David Parker. David started the meeting off with discussion of a series of practical problems; time limits on appointments under JCT Clauses (although under s.12 of the 1996 Act the courts have power to extend these); challenge to jurisdiction by replacement solicitor, ie well into the reference (the arbitrator agreed to hear the parties, with a view to issuing a declaratory award under s.31(4)(a) if required and appropriate).

Past Chairman John Timmons then invited comment on how discovery should be dealt with under the 1996 Act. He drew attention to the relevant statutory provisions, starting with the previous position under the 1950 Act, s.12(1): Unless a contrary intention is expressed therein, every arbitration agreement shall be deemed to contain a provision that the parties shall produce all document sin their possession or power which may be required or called for. This contrasts with the 1996 Act, ss.34(1) and (2)(d): It shall be for the Tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter. Procedural and evidential matters include whether any and if so which documents or classes of documents should be disclosed between and produced by the parties and at what stage. John suggested that under the 1996 Act, there might theoretically be no discovery at all, although in his view this was unlikely in practice. Section 33(1) of the 1996 Act was also relevant: The Tribunal shall adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay and expense, so as to provide a fair means for the resolution of the dispute.

Thus the powers of the arbitrator are now somewhat wider, and include the power to exercise greater control than previously over discovery and the production of documents. He is required to exercise such control, and he should be ready to deny requests for full discovery. That seems to be the consensus of opinion, but attempts to limit discovery often founder because the parties have failed to consider properly exactly what issues need to be addressed between them. The result may be a series of applications for discovery, as realisation dawns.

John noted that some arbitrators took the view that discovery was unavoidable, bearing in mind section 34(1)(g). They interpreted that as an invitation to the arbitrator to ascertain all the facts, in other words, to find out the truth of the case. That was not a view he agreed with; which we were not quite sure!. And with these thoughts the meeting drew to a close.

Robin Orme