The AGM passed swiftly though its agenda; there were no surprises or new matters. A new Committee was elected; the list, and offices, are as usual on the back page.

There are changes. While welcoming new members, we thank the four retiring members for their past contributions, often behind the scenes, which have contributed to the growth and activity of the Branch,

We hope to see them at future Branch meetings.

The first three Branch meetings of 1998 were epitomised by the years of experience of each of the three guests, speaking about subjects of their choice.

Chris Dancaster, an experienced arbitrator with a quantity surveying background, recounted some very interesting experiences arising out of his appointments as arbitrator since the Arbitration Act 1996. Apart from giving due weight to, what Chris called, the famous three, namely, sections 1, 33 and 40, he explored only a few sections of the Act in any detail because his main thrust was to tell about procedural trials and tribulations.

Chris emphasised the importance of making sure that the arbitrator’s terms of engagement were accepted by both parties before the arbitrator accepted an appointment. In particular, he urged upon us a note of caution with regard to institutional appointments, which were likely to be the product of a unilateral application, the non-applicant being a reluctant party. Nevertheless, he acknowledged that with institutional appointments he kicked the arbitration into motion by arranging a preliminary meeting at the same time as notifying the parties about his terms of engagement.

To emphasise the nature of likely problems, Chris conducted his listeners through a saga of delays arising out of one case where a reluctant respondent challenged the appointment of the arbitrator and also opposed a range of other matters concerning the duties and functions of an arbitrator.

Did we, the listeners, detect a wry smile as Chris gave an underlying message of caution as he referred to extra powers under the Arbitration Act with the prefixing adjective, "alleged"? After all, our meetings would be rather dull if our speakers had only the ordinary to tell.

Chris’ talk sparked of a good deal of questions and discussion which continued long afterwards as members munched their way through the buffet and chewed over the problems of the effective use of the new powers and the provisions generally in the Arbitration Act 1996.

Kim Franklin, a very experienced barrister, made pleadings her main topic for this forum. The Branch had heard Kim’s stimulating views about this subject [see News & Views, issue 30, March 1993, p. 4] on a previous occasion, and this time she revisited the subject with as much enthusiasm as before.

Kim prefixed her talk with the sombre note that when she came to the Bar, some fifteen years ago, arbitration had a bad name; it just did not stand up to scrutiny in respect of its promoted benefits. Judging by what Kim had to say, the situation had not improved much and her message was driven home by saying that lots of arbitrators do not understand pleadings. Nevertheless, she looked forward to better times, now that the Arbitration Act 1996 provided the framework for arbitrators to manage the arbitration as a prescribed duty, as opposed to them being simply reactive.

The arbitrator’s job is to resolve the dispute between the parties and she emphasised that one cannot do that until one knows what the parties are arguing about. The secret of success was said to be in the arbitrator defining the issues and seizing the initiative. Once that was done, the remainder of the arbitration could be focused. This "defining and seizing" process could only come about following proper pleadings. It was said that statements of case, coupled with bundles of paper, was a distraction from the real function of an arbitrator and she did not like the procedure at all. Kim advocated that claimants should make a simple pleading of their case at the very beginning of the reference, which the respondent can counter by stating what is accepted and what is rejected. From this simple beginning one is able to define the issues and go about the business of proving one’s contentions. The arbitrator can then confine himself to the issues and make sure that he is not addressed on matters outside those issues. By way of comparison, Kim said that the claimant’s preparation of a statement of case involved doing a great deal of unnecessary up-front work when it may be the case that the respondent will agree upon many of the points pleaded; moreover, the work of everyone else involved is likely to be unnecessarily increased also.

Kim urged that the parties should be what we would all call for: simple, honest and focused. And her message was that pleadings were the best vehicle for such simplicity and honesty.

Her audience was quite supportive of the type of pleadings which Kim had proposed, but it seems that there was little evidence of such simplicity and honesty in the pleadings which had been seen in practice. It was pointed out from the floor that statements of case, together with the associated documentation, was an idea brought in to counter the unsatisfactory way in which pleadings were being used by the representatives of parties in arbitration. There was a lively discussion following the talk and some of us hoped that Kim realised that she had the support of her listeners. Many of the experienced arbitrators present expressed the hope that her message would also reach the ears of those responsible for drafting pleadings. Indeed, the sight of simple, honest and focused pleadings would be like a breath of fresh air in all forms of dispute resolution.

John Merrick, a seer in his own community, came as a Branch Member to disseminate some of his hard learned experiences in the taking of evidence.

John started by saying that arbitrators ought to know about the statutes on evidence and he was not going to spend time upon that. In fact he was more anxious to tell about his empirically gleaned wisdom. John was critical of the fact that there was no formal training on listening to evidence; of course, that deficiency was, for those in attendance, being rectified to a large extent by his words.

Aphorisms abounded; for example, don’t decide anything that you don’t have to; know the issues which have to be decided before trying to decide. Such concepts were, in John’s opinion the template for listening to evidence. What one had to do was to test the evidence in order to know where one is going and whether or not one will arrive at the right place. When sitting, John asked himself all sorts of questions, such as, why are the parties in court?; were they seeking justice?; did one party simply want the other to say, "Sorry," but failed to hear those comforting words?

In a crisp form, John went on with his message: let people know you are listening to them; make sure you listen and don’t think about other things; don’t bring your own ideas into play; don’t tell the parties about your own experiences; don’t make up your mind before hearing all the evidence; tell the parties a preliminary view if it will help them; have a site inspection if it will assist with understanding; explain to the losers why they have lost.

Many topics were mentioned: information technology, experts, sources of evidence, visual charts, skeleton arguments, body language, interpreters, ethnic aspects, among them. The list went on and on and everyone present was keen to hear more and more; perhaps the Branch can persuade John to present his entire paper as a feature in News and Views? [Excellent Idea! Ed.]

For your reporter, there was one point of comment that struck home. It was that inexperience always leads one to the belief that judges have minds that grasp issues at the speed of lightning, and that they dispose of cases in double-quick time. Whereas, on the other hand, the poor old technical arbitrator stumbles and ponders and wastes every one’s time and money. In this respect it was a great help to hear a man of vast experience say, "Don’t worry if things do not seem to be clear at first, keep working at it and it will come."

There was a very valuable discussion afterwards, stimulated by John’s compact wisdom and lively delivery. Everyone came away with greater knowledge than before.

His Hon Judge Esyr Lewis addressed a well attended meeting of panel members, registered arbitrators and pre-panel trainees at an evening meeting on 9 March 1998 at the headquarters of the Royal College of Surgeons. Not many medical arbitrators seemed to be there but non-medical arbitrators averted their eyes as they passed the displays of early surgical implements in the entrance hall.

As a preamble, Judge Lewis described the evolution of the Official Referees because he had been surprised by the number of professional people who have little idea what the Official Referees are and what they do. The quaint title derived from the mid-nineteenth century when sometimes a barrister was appointed to whom a High Court Judge could refer technical issues or those involving a detailed examination of documents. Thus the first Official Referees were not judges. The development was traced to the present position where Official Referees try actions started their own registry or those referred from other courts, now less than 10. The description of "Official Referees’ Business" is to be found in Order 36 of the Rules of the Supreme Court.

The Official Referees’ work brings them into touch with arbitration through applications for leave to appeal from arbitrators’ decisions, removal of arbitrators or remission of awards in construction-related cases. They also deal with summary applications by defendants to stay legal proceedings. These have diminished, especially since Halki Shipping Corporation v Super Oils (1997) 1 WLR 1268. By agreement between the parties, Official Referees can open up decisions and certificates which otherwise could be revised only by an arbitrator. Less often, Official Referees may act as arbitrators if the Lord Chief Justice gives his consent.

The Judge was aware that the vast majority of arbitrations are successfully concluded, the awards being accepted by the parties. His experience of arbitrators is confined to cases where the arbitrator is alleged to have made some kind of error. Although in many cases such allegations fail, this does not mean that the Judge would always give an alpha to the arbitrator who has survived the scrutiny of the Court.

One of the objectives of arbitration is to secure resolution of a dispute with despatch by someone using his particular experience and common sense. Thus arbitrators need not analyse evidence or set out their reasoning in the depth which might be appropriate in a civil trial. Arbitrators must of course act judicially and their reasoning must be clear and intelligible. Errors of law arose sometimes simply because the award lacked sufficient clarity for ready understanding. Great care must be taken to get the facts right, not least because errors of fact cannot normally be corrected on appeal.

One kind of error in the conduct of an arbitrations was to arrive at a crucial decision on grounds which had not been raised or addressed by either party. Another was to make a decision on material matters raised by one party but not brought to the attention of the other, a danger especially in documents-only arbitrations. A third was to include in the award matters not referred to the arbitrator for decision.

In the Judge’s view, an award should simply define the dispute (with a summary of the circumstances), briefly summarise the parties’ submissions, state any necessary conclusions of fact and law (with reasons for them) and the result. A long preamble dealing with the interlocutory history is normally irrelevant.

Finally, the Judge referred to the Arbitration Act 1996. He drew attention to the objects of the Act and the powers it gives to arbitrators to meet them. Some arbitrators react mildly to repeated disobedience to their interlocutory directions and orders and are too ready to grant adjournments. The Judge referred to the powers given by Act to enable arbitrators to avoid unnecessary delay and expense. By way of comparison the audience was reminded that Lord Woolf’s proposals require judges to be interventionist to dispose of cases with proper despatch and economy. The audience’s questions included the self-sufficiency of the award in the light of Foleys Ltd v City and East London Family Community Services (1997) CILL 1283, positive management of the interlocutory stage and the drafting of reasons, Past Chairman John Sims’ concluding vote of thanks was warmly endorsed.