This, as I hope all Members are now aware, was the
first eve
nt at our new venue – The Bridge House Hotel,
Reigate. It was an enormous success
considerably aided by the very informative and entertaining presentation by
Tony Bingham. We had the largest
turnout, over 60, for many years and I am sure that the bar and the more
intimate nature of the venue will encourage good attendances in the future.
Tony Bingham’s presentation was on
“The Tricks People Play”.
Tony asked the questions “Why are we
here” and “Why do we require Arbitration, Litigation and Adjudication?”. The answer was communication, or lack of
it. This was orally illustrated by a
joke which is, unfortunately, unprintable but if you wish to e-mail me I will
repeat it.
Tony wanted audience participation to
gather a list of tricks or abuses in Arbitration and in a very short time
gleaned the following:
·
Timetable
·
Leading
up the garden path – particularly Solicitors and Advocates
·
Telling
the truth, the whole truth and nothing but the truth!
·
Partisan
Expert Witness
·
Is
there a dispute?
·
Does
the Arbitration clause cover the whole dispute?
·
Is the
agreement in writing?
·
Is the
Arbitrator impartial?
·
Is the
Expert an Expert?
The list could easily go on but Tony
asked “How can these be prevented” and although not a complete catch all, his
opinion was that Arbitrators should make considerably more use of Section 41
and issue peremptory orders ensuring that sanctions are specified and used. In
particular, use Section 61(2) Costs and do as they do in Litigation and award a
summary assessment of costs (38). This
should be done immediately and can have a salutary effect on the losing Party.
Another “trick” is bullying of the
Arbitrator by Counsel of Solicitors just mentioning “serious irregularity”
(Section 24) or “are you sure that you are properly conducting the
proceedings?”. Tony said if this happens,
jump in immediately and ask both Parties candidly, what is the problem and make
a note. Do not let it linger to the end
of the tribunal. The Solicitor or
Counsel has a duty to the Arbitrator to put both points for and against his
Client. Arbitrators should use this and
not be afraid to ask for guidance from both Advocates and / or seek independent
advice on the law. If you do have
independent advice – publish it!
Tony produced an article in Building
Design, March 1997, called “Porkies to Prison”?. This was a case based around daywork sheets concerning a leaking
tank. The Main Contractor stated that
damages were £15,000. The Sub
Contractor’s Quantity Surveyor could not establish any greater a claim than
£600. Subsequently it was deemed that
this was a criminal offence under the Theft Act and the Main Contractor
actually served six months in prison – so beware!
Arbitration is an investigative
process (Section 34(2)g) but is still not happening. Arbitrators are sitting stone-faced and not contributing. Tony
considers that if the Arbitrator has knowledge of the problem he should use
it.
Although not tricks, Tony considered
an abuse by an Arbitrator was charging cancellation fees and Arbitrators that
do not correctly complete time sheets.
Arbitrators fees are being challenged
more often and it is essential that all time is “?timed in” and “timed out”
with details of the work carried out, unless this is achieved, fees are
difficult to justify.
Tony finished on a golfing joke,
which was very good, but included golf, a Roman Catholic Priest and sex, so
it’s back to the e-mail.
The brilliant presentation by Tony
was followed by our first buffet in the new venue, which was excellent, many
people not leaving until 9:30-9:45.
In all, it was an excellent event.
(Don’t forget to pre-book future
events if you wish to partake in the buffet.)
David A Bailey
Chairman