18 January 2000

"Justice and only justice you shall pursue."

Deuteronomy 16.20.

1. What is the Tribunal Deciding?

The first duty is to decide what the tribunal is deciding. How far are the facts agreed? Is the appropriate law agreed? What procedure for the conduct of proceedings have the parties decided to adopt? These are matters which can be dealt with at a pre-trial review. What is left in disagreement is the province of the decision-maker.

2. Impartiality

Parties have a right to an impartial tribunal. All political and other associations need to be disclosed by members of the tribunal. In the case of Pinochet (The Times, November 19, 1999) the House of Lords held that a judge who allowed his judicial decision to be influenced by partially or prejudice deprived a litigant of the rights to a fair trial by an impartial tribunal and violated a most fundamental principle on which the administration of justice rested.

There should be no communication with one party without communication with the other. Both parties must be given the opportunity to be heard on any application.

Difficulties can arrive during adjournments. Informal chats and social eating even with both parties present, or without advocates, should be avoided.

3. Can the Tribunal Make a Decision?

Some people find it difficult to make a decision. A tribunal cannot please everyone and be ‘nice’. Many people who sit on tribunals try to seek reassurance afterwards by asking, "was that all right?" A decision has to be made on the evidence before the tribunal. All the cards should be on the table, and whilst the parties have a duty to be honest, with the tribunal, some may not be.

4. Parties Aspirations

Each party wants to win whether in litigation, arbitration, negotiation or using some other form of alternative dispute resolution.

Remember he who avers must prove, to the satisfaction of the tribunal.

5. Personal Knowledge

If a member has specialist knowledge of the area of dispute e.g. of recent settlements in landlord and tenant disputes, not referred to by the parties, this should be openly stated, so that the parties can deal with this information should they wish to do so.

6. The Judgment

The tribunal should reach its decision as quickly as possible – the same day if practicable. A judgment should give reasons. The law must be applied to the facts. Avoid the simple formula approach of ‘(x+y)/2 =z’ which is sometimes used in the valuation of property in landlord and tenant cases, if this is not appropriate. In one such case the tribunal was held not to have done its job properly. The tribunal must think the judgment through, logically, and in accordance with the law.

7. To Summarise

Decisions, in retrospect are generally seen to be fair, and the tribunal respected. If however one party is aggrieved, there is an appeal procedure built in to cater for this, and no tribunal should feel unhappy if its decision is tested on appeal.

In the final analysis, if the tribunal cannot make a decision and stand by it, it should not be putting itself forward as a decision maker.