The two contributions by John Tackaberry, QC, included in Arbitration [(1998) 64, JCIArb.3, pp.196 & 234] resulted in the suggestion that I use these as the basis for this article. The first contribution was headed, "The Official Referees: the Future?" and the second, "Correspondence: two contributions to Debate." Under the latter heading, John has presented four problems for discussion, namely:

1. How does the tribunal identify with confidence from the raft of contemporaneous documents those which are a genuine record of events from those which are carefully drafted with a view to litigation.?

2. How would one properly give weight to the testimony of oral witnesses?

3. What is the correct approach to discovery of documents?

4. To what extent does one think a tribunal should reach conclusions of fact or law on points that were not discussed before it?

These problems have been set within a framework which is based on a comparison with Continental Europe; for example: John introduces the problems with the observation that, "a French lawyer listens in horror to the English lawyers discussing the possibility of a three month hearing: he will be confident that the same matter could be heard in no more than three days." John does acknowledge the effects of slight exaggeration but emphasises that the institution (Continental European) is more advanced than the English system.

The First Contribution

This contribution on the Official Referees (now, of course, Judges of the Technology and Construction Court) is about evaluating the status of the court and its judges together with a range of recommendations for the future. As a lay-person, I am not really qualified to make play of these specialist issues but I did note an aspect which I thought was relevant to John's introductory remarks to the four problems noted above.

He has noted the issue of the alleged variability in the quality of decisions emanating from the various judges however he seemed, in general terms, to stress the competence of the judges of the court. Therefore, I believe it is relevant to note his comments associated with his observations on the effects of the heavy workload placed upon the judges.

He refers to the judges having to find time to write their judgments and states that this often means working in evenings and weekends. He stresses the point that "the time necessary to write a judgment after a hearing of 30 to 90 days is very considerable indeed" and he notes that this fact "is not always appreciated by the rest of the legal profession, let alone by everyone's financial masters, the Treasury." John then emphasises (in his footnote No. 11) that this is something that will have to be borne in mind in the future because a short hearing must increase the time necessary for out of court work and he states: "If you have a six week hearing with 200 lever arch files, there is a great deal of work out of court that the tribunal has to do if the hearing is to be effective, let alone if it is to be seen to be effective." Such observations always give me a degree of comfort because they help to dispel the notion that lay arbitrators take an endless time to do things whereas, with minds working at lightning-speed, the judges do everything in next to no time. But, of course, the observations are especially relevant to John's introductory remarks to the four problems, in so far that when French lawyers are "listening in horror" to the length of hearings in England it needs to be understood that their "horror" is not based on a comparison of like for like. Accordingly, an English lawyer should not be too ready to allow expressions of such "horror" to lead him or her to thinking that the Continental Europeans have found the secret of resolving complex matters simply and easily.

The four problems

On problems 1 to 3, one is at least, in my opinion, unable to give any answer at all because the issues can only be answered in relation to the actual matter before the tribunal. That is not to say that one can not devise hypothetical issues emphasising the extremes in order to justify whatever answer one may prefer to give but that type of exercise is of little use in practice. And, where one chooses very nebulous issues to explain the point there can be no real answer and that is why it is necessary to have a tribunal decide such matters in real cases. Indeed, that is why, for practical purposes, all tribunals are given licence to make decisions on less than adequate information; i.e., because where the information is absolutely adequate no decision is required, only powers of enforcement. The topic reminds me of a day in one of the chambers specialising in construction work. On that occasion, the client had previously been impressed with a lecture given by the QC in question (not, of course, John Tackaberry). He said that the QC had gone through the conditions of a contract and, based upon examples, had given a very clear interpretation whereas now, based upon a real problem, all the answers were vague and were dependent upon so many things. The conclusion being that if one asks a general question one is likely to get a specific answer whereas if one asks a specific question one will get a general answer. The exception to that general observation is, of course, a tribunal which is bound to give a specific answer to the specific question; which is, of course, the real work of a tribunal and that is why the decision making process can never properly be demonstrated in general discussion.

On problem 4, John has indicated in his explanation of the question, that if the tribunal is Continental European it will say, "We are the tribunal, we can decide." If, of course, we are talking about arbitration as opposed to State litigation (John, in problem 1, refers to "... carefully drafted with a view to litigation") then presumably the tribunal has only the powers given to it by the parties. In which case, the Continental European who answers in that way misses the point because one is bound only to say, "We are the tribunal, we can decide if, of course, that is the joint wish of the parties based upon their arbitration agreement."

I shall look forward to reading the observations of other readers on these issues, in the meantime, I am happy to accept that if it helps to improve what we do in England by using the illusory concept that elsewhere they have better methods then all well and good; providing that we do not actually adopt such other methods only to discover that they were not, in the event, as good as our own established procedures. And, in arbitration, our established procedures are nothing more than doing whatever is best in the individual situation; which is wholly supported by the Arbitration Act 1996; and, indeed, was so supported in all preceding Acts.