APPEALS – Meadowsweet -v- Bindweed

reported by Peter Horne

Earlier this summer I spent a very enjoyable Saturday at the Marriott Tudor Park, Maidstone, watching a mock appeal on three of the five Awards set out in “Arbitration” of May 2000. Why, you may ask, should an arbitrator (or a consultant representing one of the parties) be interested in appeals – a process beyond our usual range?

Firstly, it is only in appeals that actual awards come into the public domain and we can see what others have been doing. Secondly (and more serious), it is from appeals on a point of law and challenges to jurisdiction that the law develops and we find out how the court is defining the Act and contracts. Thirdly, from challenges arising out of alleged serious irregularity, we can see how the court views the actions of the arbitrator. Lastly, it is a tremendously satisfying intellectual exercise to see how counsel can find grounds for appeal out of an apparently good award, and, by using this process on our own awards, improve our own style and content.

The appeals were heard by Judge Anthony Thornton and Judge Frances Kirkham plus one other to form a tribunal of three. The cases were made and resisted by Peter Aeberli (barrister), Andrew Bartlett QC, Paul Jensen (non-practicing barrister), Stuart Kennedy (barrister), Timothy Lamb QC, and Jim Leckie (barrister).

It is probable that most members will not have read the Awards in detail (if at all) and I feel that I should first include a reminder of the results.

No		Arbitrator	Arb Fee	Pay Claimant (Claim)			Pay Respondent (Counterclaim)
				Claim	Interest	Costs	Claim	Interest	Costs
1.	Andrew Bartlett QC		£1,250.00 plus VAT	£3,392	8% *	Pay own	Nil	Nil	Pay own
2	Anthony Canham		£3,222.52	£2,682	8% *	£1,927.13 plus VAT	£1	Nil	£564.00 plus VAT
3	James Leckie		Separately invoiced	£4,912	8% * * up to and following award	£1,368.00	Nil	Nil	Nil
4	Michael Needham		£900.00 plus VAT	£4,118 plus VAT	8% up to award 14% thereafter	Pay own	Nil	Nil	Pay own
5	John Sims		£3,000.00 plus VAT	£4,932 plus VAT	8% up to and following award	£3,142.50 (75% of total)	£1,200	Nil	Nil

I understand that it is intended to publish the appeals, possibly in “Arbitration”?, and I will therefore only summarise here, leaving it to members to look up the original awards and assume the processes:

Appeal on Award 4 (Michael Needham)

There were three grounds for appeal:

1. Arbitrator wrongly declined to deal with the matter of defamation. Argument centred around the wording of the Arbitration Agreement and Rules. Appeal dismissed.

2. Arbitrator misconstrued and misapplied the term “motor vehicle”?. Appeal dismissed – “motor vehicle” was a form of shorthand to indicate weight restriction.

1. Arbitrator failed to give effect to express terms of the contract – size of rocks for the rockery. Appeal dismissed – arbitrator had made finding of fact which cannot be challenged.

2.

Appeal on Award 1 (Andrew ―Bartlett QC)

This part started with an application for leave to appeal which was granted for three grounds:

1. Arbitrator acted in such a way that there was real danger of bias in that he heard oral evidence from a third party during his site visit, which evidence he failed to disclose to the parties. Appeal dismissed – arbitrator had acted in accordance with his Order for Directions; there was no evidence of a discussion; in any case s.73 requires parties to draw matters to attention of arbitrator at early stage.

2. Arbitrator failed properly to consider or decide a matter which had been referred, namely the claim for defamation. Appeal dismissed – arbitrator found that Mr Bindweed had failed to bring his claim at the proper time.

3. The finding regarding the hedge was patently wrong and therefore procured contrary to public policy. Appeal dismissed – the appeal was based largely on an additional expert report, prepared some time after the award, which showed the award to be wrong. After much discussion, there is no way in which additional evidence could be adduced in this way. Judge Thornton raised the rhetorical question of whether issue estoppel applies in arbitration.

Appeal on Award 2 (Anthony Canham)

There were two grounds for appeal and three grounds for cross-appeal:

1. Appeal that the arbitrator misdirected himself in law in determining that the Appellant was not entitled to damages based on reinstatement of the rockery despite having concluded that the Respondent was in breach. Cross-claim that the arbitrator had misdirected himself in law by holding that the error in typing the size of stones was a unilateral mistake incapable of rectification when it was a manifest error which should have been susceptible of sensible construction. Both appeals dismissed – constrained by the facts found by the arbitrator which are incapable of appeal.

2. Cross-appeal that the arbitrator, having decided that the intention to build a tennis court was not reasonably foreseeable, misdirected himself in law by concluding that he should take that intention into account. Appeal dismissed – it was not relevant to consider foreseeability, only to consider what should be done at the time of the breach – arbitrator applied the right test and did not take into account matters which he should not have done.

3. Cross-appeal that the arbitrator misdirected himself in law in that he failed properly or at all to consider the assertion that he had no jurisdiction to consider or to make any award in respect of the counterclaim for defamation. Appeal dismissed – the arbitrator had acceded to jurisdiction on two grounds set out in the award and had made a finding as to his jurisdiction.

4. The arbitrator misdirected himself in law in applying the general principle that costs follow the event by concluding that the Counterclaim should be regarded as two events – the successful counterclaim and the unsuccessful counterclaim. Appeal dismissed – the arbitrator followed s.61(2) and did what the Act required him to do.

Peter Horne