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Letter to the Editor Dear Editor Reading DDJ Kevin Beach's letter in Issue No. 62, put me in mind of a request I once received from a Responding Party's solicitor. The solicitor asserted that it would be an infringement of his client's right to natural justice if I, as Adjudicator, was minded to decide any matter against the Responding Party on a point of law that had not been put to me by the Referring Party, without first bringing that point of law to the solicitor's attention, to enable him to deal with it on behalf of the Responding Party. I must admit the question gave me pause for thought, but I concluded that his basic premise was wrong, even if there had been an undisclosed point of law on which the whole case turned, which there was not. Declining the solicitor's request, I referred him to the following passage from the judgment of HHJ Fox-Andrews QC in Chichester Joinery Ltd v John Mowlem & Company plc (QBD 1987) 42 BLR 100 at p.104, which has always stuck in my mind: "It is well settled that a court determines a case on all the pleaded facts by whomsoever pleaded, regardless of whether or not the alleged legal result is alleged." Following that I heard no more about it from the solicitor, and there were also no reprisals when I rendered my Decision and a note of my fees for his client to pay. The foregoing remark by HHJ Fox-Andrews QC was made in the context of Plaintiff's Counsel's application to amend the legal basis on which she had pleaded her client's case, which application the judge had refused. He nonetheless acknowledged that he had decided the case on the legal basis he thought she should have pleaded, and which she would have pleaded if he had permitted her to amend the pleadings. Thus I too agree with the second proposition set out by Francis Millar under the heading "What did I state that gave rise to the opposition?" in his article in Issue No. 61 (see p.15 therein), to the effect that judges are not fettered by the legal submissions of the parties. I think there can also be little doubt that arbitrations are simply private trials, as DDJ Kevin Beach remarks. I would extend this to construction adjudications also, as in keeping with paragraph 12 of Part 1 of the Scheme for Construction Contracts, I know of no adjudication procedure that does not require the adjudicator to reach his decision in accordance with the applicable law of the contract. Thus I am of the view that the overriding duty of a construction adjudicator is no different from that of a judge, in spite of the speed and lack of finality of an adjudicator's decision. The position in arbitration can however be slightly different at times, hence I imagine Peter Cousins' reservations concerning DDJ Kevin Beach's letter (see Issue No. 62 at p.26). Some arbitrations, and I would suggest the vast majority, are required to be decided in accordance with the applicable law of the contract (see s.46(a) of AA'96), whilst others may be decided according to other considerations agreed by the parties (see s.46(b) of AA'96). In the latter case an arbitrator in not fettered by applicable law in the same way a judge is always fettered, but in the former case an arbitrator is, and in that former case it would be absurd to suggest that his overriding duty is any different from that of a judge. I must however take issue with Peter Cousins' suggestion in his comments on DDJ Kevin Beach's letter that ascertained facts and law have to be put to the parties. In my view, there is usually very little that the tribunal has to put to the parties. There is certainly no need to put ascertained facts, as if they are truly ascertained, they represent the tribunal's final findings of fact on the evidence adduced, and the tribunal is not obliged to reveal those any earlier than its Decision or Award. If however the tribunal is unsure of the facts, they cannot yet be described as "ascertained", and the tribunal may well seek further clarification from the parties, pursuant to its powers under s.34(2)(g) of AA'96, or s.108(2)(f) of HGCRA'96, as the case may be. It is useful to remember that the facts of the case are the preserve of the parties, and are only verifiable by reference to the evidence of the personnel directly involved. But the tribunal should limit its enquiries to information sufficient to resolve the contradictions between the parties' respective submissions, and not attempt to widen the scope of the reference beyond that which the parties have specifically asked it to decide. Even then, the tribunal is not obliged at that interim point to reveal which of two conflicting sets of evidence it tends to prefer. The same applies to the law, whether ascertained or not, but the crucial difference is that, whereas the parties are the custodians of the facts in their particular case, the law is in the public domain. Thus I doubt the usefulness of inviting legal submissions from the parties over and above the legal submissions they freely volunteer. If the parties are legally represented, they will make legal submissions without any prompting, and if they are not legally represented they will usually not know how to respond to such a request. It is therefore better for the tribunal to research the law for itself whenever a particular legal point arises, rather than simply accepting the word of the parties' legal representatives. For example, I have occasionally been cited John Conliff v Allen Build (1999) CILL 1530 in relation to the adjudicator's power to award party costs, and have usually mentioned Northern Developments v J&J Nichol [2000] BLR 158 in response if the other party has not immediately mentioned it as an alternative, but whether mentioned or not, I would not feel inhibited in applying the judgment in Northern Developments over that in Allen Build whenever the issue of recovery of party costs in adjudication arises. I think it is important to note that the information flow is predominantly from the parties to the tribunal during the course of the proceedings, and rarely in the other direction until the end, except in particular circumstances. Those circumstances arise when the tribunal is minded to rely on its own prior factual knowledge or expertise, which has not been brought into the open by either party in the normal course of the proceedings. In essence if the tribunal is minded to give evidence to itself, it is not permitted to do so in secret, and is required under the rules of natural justice to give both parties, but particularly the party disadvantaged by the tribunal's private knowledge or expert opinion, the opportunity to comment on its relevance to the matter in hand. Fox v Wellfair (CA 1981) 19 BLR 52, which was mentioned by both Peter Cousins and Peter Horne in their responses to Francis Miller's article (see Issues No. 61 & 62 respectively), was not a case about non-disclosure of the law, but rather the use of undisclosed personal valuation expertise by the Arbitrator. He used his valuation expertise, which in that context was opinion evidence, against the represented party in ex-parte proceedings, without giving the represented party the opportunity to comment on the expertise he intended to apply. The Court of Appeal held that to be unfair, and rightly so, because the represented party was completely unaware of, and was deprived of the opportunity to address, the case that the Arbitrator had himself formulated against it, to the benefit of the absent party. Thus the moral of the Fox v Wellfair is that the tribunal may use its expertise to understand the substantive issues, but is not permitted to use that expertise to decide the substantive issues, without first disclosing that expertise to the parties for comment, if such expertise has not already been aired in the proceedings. If conflicting expert opinion has been adduced during the proceedings, and the tribunal favours one opinion over the other, then the tribunal has nothing to disclose, provided the tribunal ultimately decides that the position of the unsuccessful party on an issue is no worse than has been suggested by the successful party. However, if for some obscure reason the tribunal is minded to put the unsuccessful party in a worse position than has been suggested by the successful party, then that obscure reason needs to be put to the party at risk for comment before the tribunal finally makes up its mind. As to the applicable law, this is not the private preserve of the parties, and the tribunal is not in the least dependent on the parties for any further legal information it may require. Neither is it the function of the tribunal to educate the parties during the proceedings as to what the relevant law might be, or whether he accepts or rejects their various assertions of fact, opinion or law. These are matters to be revealed in the Decision or Award, and the tribunal will not have acted in an even-handed way, as it ought, if it reveals them any sooner, as by implication such premature action prompts the unsuccessful party to make another attempt to refine its arguments, which is the sort of party assistance a tribunal should never give. To my mind, by his references to the opinions of Lord Roskill and Lord Diplock in his article in Issue No. 61, Francis Miller has successfully debunked the notion that judges are limited by the legal submissions of the parties. DDJ Kevin Beach's support in Issue No. 62, and my reference to a judgment of HHJ Fox-Andrews above illustrate that these sentiments hold sway throughout the Judiciary, and it would be patently absurd if the position were any different for adjudicators and arbitrators who are obliged to decide matters in accordance with the applicable law. However, does my acceptance of Francis' second proposition mean I must also accept his first proposition that "the process of seeking to arrive at the correct law and its application is not an adversarial matter in a trial"? I think not. Just because the tribunal is the ultimate arbiter of the applicable law, and the applicable law is in the public domain, does not mean it is any less of an adversarial matter between the parties. It is true that advocates in court are honour bound to bring precedents that are unfavourable to their cases, as well as those that are favourable, to the attention of the court. I think this obligation may sit somewhat more lightly on barristers' shoulders when engaged in arbitration and adjudication, but their usual obligation does not mean that legal arguments are not presented in an adversarial way in practice under each of these procedures. It is clear to me that they are, and indeed I would go so far as to suggest that justice demands that they should be. Even in court, to judge from the law reports, the advocates' emphasis is always on attempting to get an unfavourable precedent distinguished, and a favourable one applied. Indeed, an advocate would be doing his client a disservice if he did not proceed in this way. After all, the advocate is not the judge of his client's case, and the decision he would come to if he were the judge is immaterial. His job is to present his client's case in the best possible legal light, and even if he has advised his client privately that he stands a very good chance of losing, he is unlikely to adopt a defeated demeanour in court, or in front of a lay tribunal. This does not necessarily mean that the advocate is attempting to trick the tribunal into accepting bad legal points. So long as a point is relevant and arguable, and has not been overruled by a superior judgment, then the advocate is entitled, and is likely, to put it to the tribunal. I would add that I also think that if a point of law is relevant and arguable, it needs to be put to the tribunal to test the case properly. It is then for the tribunal, not the advocate, to decide whether the point is good or bad, and this is the adversarial procedure in respect of the law that I believe occurs in practice. Thus I disagree with Francis' first proposition, although I accept his second. Yours etc., Derek Ross |
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