Review
Francis Miller 'Conflicting Judgements' and 'The Square Root of Disputes'
The first of these two essays is specifically about Section 9 of the Arbitration Act 1996, and the case of Halki Shipping Corporation v Sopex Oils Limited (1998) 2AE 23. Its underlying theme, we are told, is about " ... the merry-go-round of conflicting High Court judgments and dissenting judgments of the Court of Appeal, and also divided opinions of the House of Lords on matters concerning arbitration procedure". It is based on the concept of an open letter to the Right Honourable The Lord Goff of Chievely. We are not told whether Lord Goff has replied to the letter, or even whether Francis sent him a stamped addressed envelope for his reply.
Francis asked Lord Goff to remedy what he describes as a significant problem, namely how to negate an erroneous dissenting judgment of the Court of Appeal. He is referring to the dissenting judgment of Hirst J in Halki. If he had written to me first, I could have saved him all those hours of writing in the still watches of the night in Crowborough. Lord Goff cannot negate that dissenting judgment. It is difficult to understand why Francis is getting all steamed up about it. He does not agree with Hirst J and, anyway, the Judge was in the minority. Francis wants the Civil Justice system " ... to quash, immediately, the speculation and generally damaging effects of this judgement". He wants Judges to do something about it. I thought of suggesting that Francis send a postcard to the Lord High Chancellor, but I have it on good authority that the latter is much too busy signing things.
Francis points out that an analysis of the word 'dispute' is not relevant to the implementation of Section 9 of the 1996 Act. This occupied a substantial amount of the Court's time in Halki. He goes on to conclude, wrongly, that Parliament, in Section 9, effected an abolition of the existing Order 14 procedure.
Having stated, at the beginning of his essay, that Hirst J was wrong, he then devotes some 26 pages to saying the same thing. On the way we are treated to some quaint aphorisms, eg "Foresight is an art developed out of desperation for survival". (Analyse. Answers on one side of A4 paper). He describes the judges in the Court of Appeal and the House of Lords as people who spend a significant part of their time living in the world of hindsight. He recommends that in any appeal to the House of Lords, the Lords shall be addressed by the Appeal Court Judges and no other party or his representative shall have a right of audience.
I liked the misprint on page 32 "... the true intent of an Act of Parliament which, of course, exits by Royal Assent".
Having struggled through this essay I am afraid that I have to tell Francis that, on this occasion, Lord Goff cannot help him.
The second essay has the silly title 'The Square Root of Disputes'. In it he asserts that disputes arise:-
a) because one or both parties are not in possession of all the facts, thus giving rise to misunderstandings, or
b) because one or both parties perpetuate the dispute for some ulterior motive, or
c) because of intransigence of one or both parties.
Agreed.
If he had stopped there he could have saved the printer a great deal of ink, and fewer trees would have had to be felled. He could have spent the rest of the morning practising his golf swing. Instead, he takes the reader down his labyrinthine ways, suppurating with tortuous arguments, using his own idiosyncratic version of the English Language. Having made his claim (undisputed) that it is people who cause disputes, he states on page 4 that "... the reality of the claim spreads its wings way beyond contractual relationships". What on earth does he mean by 'the reality of the claim spreading its wings beyond contractual relationships! He does not mean the reality of the claim. Reality, or unreality, do not come into the discussion. He means the validity of the claim. Why does he not say so? Throughout the essay he repeats the misuse of the word 'reality'. It puts me in mind of someone singing slightly off key.
On page 7 he says "In the general text, I have made use of the term 'total knowledge' in contraposition to 'individual knowledge' with a little flexibility in the locutional sense, but that is not the case for the reality of the claim which I have made". I am sure that in Purley and Coulsdon South 'contraposition 'is a word in constant use, as are the words 'the locutional sense'.
On page 8 he says "... there may be a plurality of subsidiary motives". Does he mean 'there may be more than one motive'? Why does he not say so?
On page 9 he says "... if you defeat my statement". He means 'if you disprove my statement'. Surely the English language is not that difficult.
On page 13 he states "if the obligations and rights under an agreement are not yet in anyway performed, and one party seeks performance, the court will only enforce the rights and obligations if the terms of the agreement are certain. If the rights and obligations have been performed to any extent, but there is uncertainty in the agreement between the parties, then the court will imply terms which are certain". Really? Who says so? How can one perform a right?
On page 15 he states "The distinction between individual knowledge and total knowledge is what I am now, for convenience, going to call the disparity in knowledge". I do not believe that I need to explain in greater detail what I mean by the expression - disparity of knowledge - but I do wish to eliminate ulterior motive from disparity in knowledge". I find that last phrase incomprehensive. He misuses the word 'disparity'. He goes on, thus "I accept that, on my reasoning, one may say that ulterior motive is simply part of the disparity in the knowledge as between the parties. However, the very nature of an ulterior motive which is intended to be an unjustified detriment to the adversary is sufficient reason to keep it separate from an honest disparity in knowledge which is an unintentional deficiency". That's clear enough, isn't it?
On page 24 he states "On balance, I am inclined towards the view that experts who actually find themselves giving evidence to a tribunal are generally more likely to be improperly informed by the clients and/or less knowledgeable than expected on the particular topic on issue, than they are likely to be less than honest". I do not know his justification for saying that.
He continues by giving us the benefit of his thoughts on assessors, the tribunal, negotiation, conciliation, mediation, litigation, arbitration and other procedures. On page 34 he makes observations, he says 'in tenet mode', such as "A free society is more likely to be a litigious society and growing litigation is the evidence of that freedom". Now, why didn't I think of that?
When I had finished both essays I was reminded of the immortal words of AE Houseman (remembering a friend of his in Shropshire) written as he watched the lowing herd wind slowly o'er Wenlock Edge, and falling down the other side.
"There was a young man called Miller,
whose prose was an absolute killer;
His meanings - obscure -
Were hard to endure;
His conclusions got shriller and shriller"
John Timmons