OneNote 27/05/2020, 4:52 PM

T4/Chapter 10
Thursday, 19 September 2019 7:06 PM

KEYWORDS:
Kitchen sink approach
Tribunals strong argument in th
Introduction
1. Jonathan Law: A body established under an Act of Parliament to decide
on claims and disputes in relation to the administration of legislative
schemes
2. Distinct form of judicial body
3. Tribunals are like courts that people can go to, to solve their disputes
4. Lay members (non-legally qualified) alongside a legally qualified judge.
Lay members provide a layer of expertise

Membership of Tribunals and Appointments of Tribunal

Judges and Lay Members
1. 1 judge as chairperson and 2 lay members as wing members
2. Tribunal members appointed by Lord Chancellor (are they truly
independent then?)
Franks Committee Report on Tribunals 1957
1. Reported that tribunals were likely to become an important part of the
legal system
2. Recommended that the tribunal procedure practice openness, fairness
and impartiality
3. Recommendations:
1. Two Councils on Tribunals
i. Advisory public body sponsored by Ministry of Justice
ii. Reviewed the workings and constitution of tribunals
iii. "Watchdog with no teeth"

Leggatt Report 2001

1. Identified significant weaknesses in the system
2. Recommendations to achieve fairness:
1. Independence from sponsoring departments
2. Brought within a single structure with uniform powers for
all tribunals
3. Simple procedures
4. Effective decision making
5. Proportionate remedies
6. Cost-effectiveness
7. Expertise appropriate for the case at hand
8. Speed in reaching final decisions
3. Weaknesses identified:
1. Lack of accessibility
i. No matter how good tribunals may be, they do not fulfill
their function unless they are accessible by the people who
want to use them
2. Not user-friendly
i. Many have become increasingly like courts and difficult for
claimants, without legal professional help, to take their case
to a tribunal
3. Dependent
i. The relevant Ministry responsible provided admin support,
selected tribunal members, paid their fees, laid down
tribunal procedures
ii. This undermined the independence of tribunals
4. Lack of coherence:
i. Each tribunal adapted to one area of law.
ii. Self-contained and operated separately from each other by
using different procedures; lacked coherence; no uniform
standard of service
Tribunals, Courts and Enforcement Act 2007
1. Review of the tribunal service by the Labour Government
2. Followed the recommendations of the Leggatt report
3. Established:
1. Tribunals Service which coordinated the tribunal administrations
2. First-tier tribunals and Upper tribunals
4. Changes:
1. Moved from sponsoring departments to the Ministry of Justice
2. Council on Tribunals replaced by the Administrative Justice and
Tribunals Council
i. Tribunal procedure rules to be made by a Tribunal Procedure
Committee which put an end to a chaotic system with
fragmented rules
ii. Abolished in 2011 to cut national debt
5. S.1: Judicial independence in S.3 of the Constitutional Reform Act 2005
applies to tribunal members

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Advantages & Disadvantages

Presence of non-legally qualified members alongside Lack of funding

qualified judge • Public funding not available which puts one party at a disadvantage if the
other party has hired legal assistance
• Legal aid that is available is usually provided in cases where human rights are
involved

Cheap; file own paperwork, own research and evidence; More formal than ADR
no need to hire legal representation; rare for an order of • Can be confusing for parties presenting their cases themselves without legal
costs to be on the losing party assistance
• Where an applicant is not represented, the judge is expected to assist
establishing the key points the applicant wants to make, but this is only an
ideal and not realistically achievable
Freedom from technicality: forms online, accessible to Delay
the public, guidance provided on procedures • High number of cases so there is a long waiting time for a hearing
• Use of lay members part time means that they do not work everyday which
adds to the delay
Fast; courts take a longer time to resolve dispute • Structure is confusing as the membership of tribunals vary (1-3 judges)
Some tribunal hearings can be resolved within a day • Lack of openness: closed hearing, outcome not discussed publicly
• Burden filling papers
Deliberated by lay members who has expert knowledge • Many tribunals
on the dispute area • Very specific: what if the case requires 2 tribunals (2 areas)?
• Lay person may not understand the many types of tribunals
Not bound by doctrine of binding precedent; More No precedence; no certainty
specialised judgments which is not bound by case law

Mediation
Introduction
1. A process where a third party, a mediator, helps both sides to a dispute
come to a mutually acceptable agreement
2. The agreement can be documented to form a binding contract so that it
will be enforceable in court

Scope
1. Divorce and matrimonial proceedings
1. Mediation compulsory as stated in Family Law Act 1996
2. Informality, privacy because of sensitivity of issue
3. Adversarial nature of the court system can aggravate both parties
which is harmful where children are involved and parents are
required to keep in touch post-divorce
4. Ensure arrangements between divorcing couples are made as
amicably as possible
2. Negligence and judicial review action
1. Areas: personal injuries, negligence claims; property loss
2. Dunnett v Railtrack (2002)
i. Landmark case which increased the profile of ADR
ii. Court asked D why they were not willing to undergo ADR,
they stated it may involve the payment of money over and
above what had already been offered.
iii. Controversially ordered the winning party to pay for the
losing side's costs because of the former's failure to respond
positively to the court's suggestion to enter mediation
iv. Highlights the misunderstandings of the purpose of ADR:
1. Skilled mediators can achieve satisfactory results which
are beyond the power of courts
2. May be able to provide solutions which are beyond the
powers of the court
3. Halsey Case (2004)
i. Significant case on ADR; established principles in terms of
compulsion and costs; reduced the scope of the Dunnett
rule
ii. Compulsion:
1. Courts have a duty to encourage ADR where it is
appropriate
2. All members of the legal profession should discuss
about the possibility of ADR before conducting
litigation
3. Article 6 of ECHR: right to fair trial
a. It is unfair for courts to oblige parties to undergo
mediation where one party refuses to do so
iii. Costs
1. The Civil Procedure Act states that an unsuccessful
parties bears the cost of the successful party.
2. The court stated that refusing payment of costs for the
successful party on the ground that they refused ADR
is an exception. Burden on unsuccessful party to show

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that the successful party acted unreasonably

a. Factors to be taken into acc:
i. Nature of dispute
ii. Attempt of parties to try other settlement
methods
iii. Whether the costs of ADR would be
disproportionately high
iv. Whether ADR had a reasonable prospect of
success
3. Trust and probate dispute
1. Distribution of family assets
4. Property disputes
5. Landowner & tenant disputes
6. Defamation, employment, housing disputes
7. Commercial disputes
1. Leicester Circuits v Coates Brothers (2002)
i. Court found for the claimants; on appeal the court found for
the appellants.
ii. However, appellants had withdrawn from mediation 2 days
before it began on grounds that they believed that there was
no prospect of succeeding.
iii. CA held that altho successful, they were only entitled to
costs up to the date they agreed to mediation. Further held
that their reason did not entitle them to withdraw; and ADR
could have avoided unnecessary litigation.

Cost consequences of avoiding mediation

1. Burchell v Bullard (2005) case affirmed Halsey's factors
1. LJ Ward: "stamp of approval to mediation"
i. "costs of ADR are a drop in the ocean compared to the
fortune spent on litigation"

Journal
Tronson B: states that courts suggest mediation (voluntary) but is also
threatening to penalize parties that do not mediate. In reality, CA has made
mediation compulsory because the financial risks of avoiding mediation are
too great

Arbitration
Introduction
1. Jacqueline Martin: procedure in which a dispute is submitted to one or
more arbitrators who make a binding decision

Principles
1. Consensual
1. Parties insert an arbitration clause in the relevant contract - Scott v
Avery clause
2. Unlike mediation, a party cannot withdraw form arbitration
unilaterally
2. Parties choose their arbitrators
1. Arbitration Center can suggest potential arbitrators with relevant
expertise
2. Choose arbitrators that both parties are comfortable with
3. Neutral
1. Can choose nationality, applicable law, language and venue of the
arbitration.
2. Allows no one party to enjoy home court advantage
4. Confidential
1. Any disclosures made during the procedure, and the awards are
protected
5. Decision of the arbitral tribunal is final and easy to enforce
1. Parties must carry out the decision
2. Enforceable in court; legally binding

Areas
1. Intellectual property rights
2. Competition disputes
3. Statutory claims
4. Insurance & construction
5. Shipping
6. Insurance disputes
7. Criminal and family matter CANNOT be referred to arbitration

Binding element
1. Arbitration agreements cannot bind a party that has not consented to it
2. Only binding on the parties that assent, and third party beneficiary of
rights

Arbitration Act 1996

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1. Heavily influenced by the UN Commission on International Trade Law

(UNITRAL)

Appointment of Arbitrator
1. Expert in the field of dispute
2. Legally qualified persons can be arbitrator
3. Arbitration agreement sets out the procedure for the appointment of
arbitrator
4. If agreement fails to do so, the Arbitration Act sets out default
procedures

Appeals and judicial review

1. 3 grounds a challenge can be made:
1. Jurisdiction
i. Challenge the validity of the arbitration agreement,
constitution of the tribunal, scope of the arbitration
agreement
2. Serious irregularity
i. Tribunal failed to act impartially and fairly, caused
unnecessary delay or expense, exceeded its power, failed to
deal with the issued , award obtained by fraud
3. A point of law
i. Decision of the tribunal was wrong or open to serious doubt
2. Before going to court, the parties must exhaust resources from the
tribunal and arbitral process of appeal/review to correct the award.

Advantages & disadvantages

Cheaper than going to court sometimes (depending on the Expensive

arbitrator/lawyer chosen)
Flexible: time and place can be chosen; parties feel like their interests Uncooperative parties (maybe parties do not want to sign the arbitration
are accounted for document; disrupt proceedings)
Neutral Time consuming
Arbitrators are specialized in the field Lack of awareness about arbitration
Prevents business relationship from becoming hostile as dispute Lack of uniformity in decisions because there is no precedence
settled in an amicable manner
Confidentiality Some inexperienced counsel
Decisions are certain and binding Final decision is difficult to overrule
Awards are enforceable (can be made into court order) even though No opportunity to cross-examine the testimony of the witness
the arbitration was settled in a different jurisdiction; all follow NY
Convention so Acts are almost similar and applicable country-to-
country

NY Convention - Convention on the Recognition and Enforcement of

Foreign Arbitral Awards - UN
Arbitration allows parties to keep disputes out of national courts
which enables both parties to select a neutral forum/platform to
resolve the dispute
Consensual

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