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Fast-track and Inquisitorial Procedures in Arbitration and Adjudication
Peter Aeberli, 12 April 2005
The Arbitration Act 1996 allows the arbitrator to adopt "procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense". In his presentation, Peter explained that this can be interpreted as encouraging a fast track procedure and he described what this means in practice.
Not every case lends itself to fast tracking but, where it is appropriate, there can be a considerable saving of time and cost. It is particularly appropriate when one or other of the parties is not properly represented. Unless the arbitrator takes a grip of the situation, chaos can result. The fast track process involves a higher than normal degree of intervention on the part of the arbitrator, while allowing each party a reasonable opportunity to present its case and to know the case to be met.
Despite comments to the contrary in Mustill and Boyd (which may now need updating to reflect the more proactive approach of many judges) it is nowadays not only acceptable but also desirable, where possible, to minimise the length of proceedings. This can be achieved by compressing both the pre hearing stages and the hearing itself. Ideally, the parties will agree to this compression but, in appropriate circumstances, the arbitrator may be justified in imposing it.
The fast tracking begins at the pre hearing stage. The normal sequential process of pleadings, disclosure, witness statements and expert reports can be replaced by a joint effort to produce a common bundle including case statements, legal arguments, witness statements, documents and, if appropriate, expert reports. Each party will be required to work to a pre agreed timetable and the common bundle of disclosed documents should ideally have sequential pagination.
A particular difficulty, where disclosure is not completed before witness statements are served, is to manage enforced disclosure. This can be done by providing for, in addition to voluntary disclosure of documents relied on with case statements, applications for specific disclosure either after each party'?s first case statement is served or after an initial exchange of case statements. This ensures that all the disclosed documents can be commented on by witnesses before the exchange of case statements is concluded. There are a number of steps that the Arbitrator can take to ensure a greater focus at hearings.
One is to direct that the matter will proceed on documents only, unless either party applies for permission to cross-examine specific witnesses on particular paragraphs or topics in their witness statement or in some other witness statements or reports. The hearing is then limited to such cross-examination with associated re-examination, and submissions. If a hearing is not applied for, the matter proceeds after written submissions, on documents only.
Another technique is for the Arbitrator to prepare, on the basis of the parties' case statements, documents, and witness statements, a List of Issues. This is sent to the parties in draft. If either party believes the Arbitrator has misdirected himself as to the issue or their cases of those issues, he can apply for the list to be corrected.
The List of Issues sets out the undisputed factual background, the issues to be resolved, and a précis of each party's case on each issue. It may also seek through Arbitrator's observations, to narrow issues, strip away irrelevances, and to focus the attention on the key areas of dispute and their consequences. If it is to be used by the Arbitrator as the vehicle for witness conferencing, it may identify topics for witness questioning and key documents relating to those topics.
The speaker gave a number of examples of questioning techniques he had used in a List of Issues. He also gave examples of directions he had used in connection with the preparation of a List of Issues. If witness conferencing is to be used at a hearing, witnesses are heard concurrently, not sequentially. The hearing is, in effect, a topic by topic discussion between the witnesses, firmly chaired by the Arbitrator. An inevitable consequence of this procedure is that the parties lose a degree of control over their witnesses but, very often, the Arbitrator will gain a greater insight into the witnesses'? evidence and much time can be saved. At the end of each topic, the parties' representatives are invited to ask supplementary questions and, at that stage, may also be invited to make their closing submissions on that topic.
The high degree of intervention by the Arbitrator in witness conferencing means that he must be very thoroughly prepared. It is not a technique to be used by those without experience of conducting the questioning of witnesses in contested proceedings. Neither should it be used without a clear agenda, such as an expert's joint statement of matters agreed and disagreed, or an Arbitrator'?s List of Issues, preferably one into which the parties have had an input.
In answer to a question from the audience about the danger of the parties being coached by the Arbitrator when he writes the List of Issues, Peter acknowledged that this can be a danger but the list is nonetheless valuable. If the Arbitrator is shown to have misunderstood the issues or the parties'? cases, or if there is uncertainty or confusion about what those cases are, it is far better for this to emerge halfway through the process, when the error can be corrected, than at the end when it may be too late.