AT&T Corp v Saudi Cable Co. (2000) CA

^[ADR -  arbitration - courts have power to investigate arbitration matters - test for bias same as common law]

AT&T and Nortel bid for a telephone contract in Saudi Arabia. A dispute arose about the pre-bid process which was required to go to arbitration. AT&T wanted the arbitrator removed because the arbitrator had not disclosed he was a non executive director of Nortel.

Held: The court could investigate misconduct in arbitration matters under the ICC Rules 1988. The test for bias in private arbitration proceedings should be the same as the common law test.

In this case there was no substance to the allegations of misconduct or bias.

Appeal dismissed

Bache v Essex CC (2000) CA

^[ADR - tribunals - bias - right to representation by lay person - contempt of court]

C was represented by a lay person in Employment Tribunal proceedings.  The representative was not doing very well and persisted in raising irrelevant matters so the tribunal directed C to represent herself, but allowed the representative to remain and advise.

Held: There is a statutory right for a party to be represented in an employment tribunal by a person (qualified or lay) of his or her choice, which could not be restricted.

The tribunal can insist on proper behaviour, improper behaviour could be contempt of court.
 

The tribunal’s error had no effect on the outcome of the case and accordingly the appeal was dismissed.

Barnard v National Dock Labour Board [1953] CA

^[ADR - tribunals - statutory power - delegate cannot further delegate]

The Port Manager suspended workers using powers delegated to him by to London Board, delegated to them by The Board under the Dock Workers (Regulation of Employment) Order 1947.

Held: The second delegation was ultra vires and the manager's decision was therefore a nullity.

Suspension quashed

Broadcasting Complaints Commission ex p Barclay, R v [1997]

[BCC bound by statute]

D could do nothing about a complaint about a TV journalist in a dinghy invading the privacy of C who owned a private Channel Island, the programme had to be broadcast first.

Held: Application for judicial review dismissed. It might leave the individual without a domestic remedy, but the wording of the statute was clear.

Brooks v Civil Aviation Authority (2000)

^[ADR - ombudsmen - Pensions Ombudsman - investigations]

D the Pension Ombudsman rejected C's claim for an occupational pension on the ground of ill health.  D relied on the reasons given by the Employment Tribunal for C's dismissal, which were capability and conduct, and not by undertaking his own enquiry. 

Held: The Ombudsman had wide powers of investigation and a wide discretion to decide the best way to conduct an investigation under the Pension Schemes Act 1993 s.146. He had not, by adjudicating the complaint based on a review of existing material, delegated any of his decision-making power to another and it was not suggested that he had failed to consider any relevant issue.

Appeal dismissed

C v C [2003] CA

^[ADR - mediation - use in family proceedings]

The court invited the Children and Family Court
Advisory and Support Service (CAFCASS) to become the guardian of two girls, and made various suggestions in respect of the appointment of a psychiatrist or a psychologist. The father of the girls contended that he had been the subject of an alienation process adopted by the mother. There followed a string of mishaps which resulted in the mother, father and CAFCASS missing contact hearings. The father’s contact orders with the girls were ended, so he appealed.

Held: The court would instruct CAFCASS to instruct an expert with proper experience and with sympathy for a mediation based approach to see what could be done with the father and mother to facilitate a future relationship with the girls.

Father's contact reinstated

Cable & Wireless plc v IBM United Kingdom Ltd [2002] QBD

^[ADR - mediation - courts power to order mediation, in suitable cases]

D allegedly failed to comply with the terms governing the quality and cost of the technology services it provided. Their contract stated that in such event the matter should be resolved by ADR, it they failed to resolve it by negotiation.

CPR 1.4(2)(e) provides that the court should further the overriding objective by actively managing cases, including encouraging the parties to use an ADR procedure if the court considered that appropriate and facilitating the use of such procedure.

Held: The reference to ADR had binding effect.

The contract included a sufficiently defined mutual obligation upon the parties to go through the process of initiating a mediation, selecting a mediator and at least presenting the mediator with its case and documents.

For the courts to decline to enforce contractual references to ADR would fly in the face of public policy as expressed in CPR 1.4(2)(e).

Proceedings adjourn for ADR, which failed and the case resumed in the court

Cowl and others v Plymouth City Council [2001] CA

^[ADR - courts powers in disputes between public authorities and the public - importance of avoiding litigation]

C appealed against the refusal of his application for judicial review of the council's decision to close the residential home in which he was a resident. C sought to have an assessment of the community care needs of the residents.

Held: To avoid litigation between public authorities and members of the public it was the duty of the courts to use their powers under the Civil Procedure Rules 1998 to ensure that such disputes were resolved by a complaints procedure or other form of alternative dispute resolution.

Lord Woolf:

• Courts should make appropriate use of their ample powers under the CPR to ensure that the parties try to resolve the dispute with the minimum involvement of the courts.

• The legal aid authorities should co-operate in support of this approach.

• To achieve this objective the court may have to hold, on its own initiative a hearing at which the parties can explain what steps they have taken to resolve the dispute without the involvement of the courts.

• In particular the parties should be asked why a complaints procedure or some other form of ADR has not been used or adapted to resolve or reduce the issues which are in dispute.

• If litigation is necessary the courts should deter the parties from adopting an unnecessarily confrontational approach to the litigation.

C lost, order by agreement

Civil Service Appeal Board ex p Cunningham, R v  [1991] CA

^[ADR - tribunals - normal rule, reasons to be given]

C was unfairly dismissed from the Prison Service following an allegation of assaulting a prisoner.  The Appeal Board awarded him only £6,500 compensation, rather than the £15,000 he might have received in an industrial tribunal. Because of his he was a prison officer he had limited appeal routes.

Held: The Civil Service Appeal Board carried out a judicial function.  Because an industrial tribunal was required to give reasons in comparable circumstances natural justice required the board to give reasons when deciding whether the dismissal of a person in Crown employment who was barred from making a complaint to an industrial tribunal was fair or unfair.

C won

Per curiam. The reasons given by the board need be no more than a concise statement of the way in which it arrived at its decision and the figure awarded.

Criminal Injuries Compensation Board ex p Dickson, R v [1997] CA

^[ADR - CICA - no duty to allow oral representations except on facts]

D the Board (now the Authority) refused compensation for assault and robbery to C who had a long criminal record.  They refused to allow him to make oral representations against that decision.

Held: The Criminal Injuries Compensation Scheme 1990, para 24(c), clearly limited oral hearings to cases where the facts were in dispute, which was not the case here.  What was disputed was the effect his character and previous convictions had been taken into account in assessing compensation, the applicant was challenging the board’s decision not to make an award.

Board's decision approved

Department of Economic Policy and Development of the City of Moscow and another v Bankers Trust Co and another [2004] CA

^[ADR – arbitration award judgment should remain private]
The parties were involved in arbitration under UNICTRAL rules in London. The arbitration took place in private and the award was published only to the parties. The judgment was not marked private and the publishing company Lawtel received a copy of the judgment, which in good faith it summarised on its website and by email to its 15,000 subscribers.

Held: The full text of the judgment could be published. Even though the hearing might have been in private, the judgment should be given in public where that could be done without disclosing significant confidential information; there has to be a balance.

Dugdale v Kraft Foods [1977] EAT

^[ADR - lay members of ET's not to prefer their knowledge to witnesses' without further enquiry]

D employed female checkers who did similar work to male checkers.  Male workers worked nights and Sundays whereas the women were forbidden by statute to work at night or on Sundays, and were paid a lower hourly rate.

The ET found their work was not comparable and dismissed their claim for equal pay.

Held: Members of Employment (formerly Industrial) tribunals are appointed because of their special knowledge and experience are entitled to use that knowledge and experience to fill gaps in the evidence about matters obvious to them. But where evidence is given which is contrary to their knowledge and experience, they ought not to prefer their own knowledge and experience without giving the witnesses an opportunity to deal with it. The difference between the things which male and female employees did, such as the time work was done should be disregarded if that was the only difference between them and female employees

Case remitted for further consideration

Dunnett v Railtrack (2002) CA

^[ADR - costs implications for not engaging in ADR]

D the railway authority.  C kept horses in a field that adjoined an inter-city railway line. A gate leading from her field was replaced, but could be left open. The workmen said that to fit a lock would be illegal. Three horses escaped and were killed.

The judge found that it had not been reasonable for C to rely on the workmen’s advice.

At the hearing at which permission to appeal was granted, the court stated that the parties should attempt alternative dispute resolution (ADR). The defendant refused outright to consider ADR - and offered inadequate compensation - and the matter proceeded to the hearing of the substantive appeal.

Held:  CPR 1.4 stated that the court should further the overriding objective of the CPR by encouraging the parties to use ADR (active case management). Furthermore CPR 1.3 stated that the parties were required to help the court in furthering the overriding objective.

To flatly turn down ADR could place the party doing so at risk of adverse consequences in costs.

D won, but no costs order made.

Dunnett was applied in Leicester Circuits Ltd v Coates Brothers plc [2003] (there is a prospect that mediation will succeed, and an unexplained withdrawal has cost implications)

Gold v Mincoff Science & Gold (a firm)
[2002] CA

[ADR - failed ADR changes the nature of the action]
D a firm of solicitors against whom C issued proceedings alleging that it had negligently advised him in relation to an unusual clause within several mortgages which he, with others, had taken from a bank.

C and D entered into alternative dispute resolution (ADR), which was unsuccessful.

C applied to amend his particulars of claim because ADR had taken place based on the case as originally pleaded.

Held: Whilst it was to be emphasised that ADR was not to be discouraged, it would be quite wrong if the effect of going through a failed ADR process was to force a party to pursue a claim at trial that was bound to fail if it was not amended.

D lost

Govell v United Kingdom (1998) ECHRCommision

[Arbitration - police complaints procedure not adequate remedy]

C's Convention rights had been violated by secret surveillance.

Held:  The police complaints procedure did not provide an adequate remedy in domestic law. The case has yet to be heard by the Court.

Halsey v Milton Keynes General NHS Trust and Steel v Joy and Halliday [2004] CA

^[ADR - courts will 'encourage' appropriate use of mediation by adverse costs orders]

Conjoined appeals.
1. Halsey was a medical negligence case. D, the hospital where C’s husband died, allegedly because of an incorrectly fitted nasal feeding tube. D refused invitations by C to mediate, and C lost at trial.
2. Steel, was a car accident case where D refused an offer of mediation.

Held: The courts will not refuse costs to a successful party unless it was shown that the successful party acted unreasonably in refusing to agree to ADR. The normal order of costs made to the winning party (costs follow the event – crudely stated “the winner takes all”) would not apply if the successful party acted unreasonably.

To oblige truly unwilling parties to refer their disputes to mediation (the most common form of ADR) would be to impose an unacceptable obstruction on their right to access the court, and could fall foul of Article 6 of the European Convention on Human Rights, which gives citizens the right to a fair trial.

Compulsory ADR orders will not be made as to do so would make a voluntary process involuntary.

Factors the courts will take into account:

• The nature of the dispute;

• The merits of the case;

• The extent to which other settlement methods had been attempted;

• Whether the costs of the alternative dispute resolution would have been disproportionately high;

• Whether any delay in setting up and attending the alternative dispute resolution would have been prejudicial;

• Whether the alternative dispute resolution had a reasonable prospect of success.

Hurst v Leeming [2002] HC approved
 

Hurst v Leeming [2002] Ch Div

[ADR - where mediation is inappropriate it can be refused]
D a barrister, was sued for professional negligence by his former client C, a solicitor.  D had represented C in failed actions against C's former partners.
C's lost his actions including appeals in the Court of Appeal and the House of Lords and the expense bankrupted him.

C refused to pay D because D had refused to go to mediation.

Held: D was justified in taking the view that mediation was not appropriate because it had no realistic prospect of success.
 

It had been more than 11 years since the claimant began his campaign of litigation against his former partners, solicitors, counsel and other professional advisers. He was a man obsessed with the 1995 judgment. That obsession had led to his bankruptcy, and he was effectively immune from costs awards made against him by the court.

D won

Lesotho Highlands Development Authority-v- Impregilo SpA and Others [2005] UKHL

Whole case here

[ADR – arbitration – courts reluctant to interfere with arbitration findings – statutory interpretation]
D built a dam in Lesotho (Africa) for C. The parties took a dispute about additional labour costs to an arbitration tribunal in London. The Tribunal made an award in sterling and euros rather than the local Lesothan currency.

Under the 1996 Act, a party may apply to the court challenging an award if the Tribunal has exceeded its powers. However, International Chamber of Commerce (ICC) Rule 28.6 provides that all parties forego any right of appeal to the courts, except for a serious irregularity under the 1996 Act.

Held: Their Lordships refused to disturb the Tribunal’s award. They upheld the principle – of “great importance” - of minimal intervention in arbitration proceedings.

C won

Comment: The Act was examined textually. A high threshold was required for the courts to intervene in arbitrations.

Lord Steyn adopted a purposive approach upholding that the 1996 Act was intended to promote one-stop adjudication. A major purpose of the 1996 Act was to reduce drastically the extent of intervention of courts in the arbitral process.

"The Act has however given English arbitration law an entirely new face, a new policy, and new foundations. The English judicial authorities . . . have been replaced by the statute as the principal source of law. The influence of foreign and international methods and concepts is apparent in the text and structure of the Act, and has been openly acknowledged as such. Finally, the Act embodies a new balancing of the relationships between parties, advocates, arbitrators and courts which is not only designed to achieve a policy proclaimed within Parliament and outside, but may also have changed their juristic nature."

Marc Rich Agriculture Trading SA v Agrimex Ltd. (2000) QBD

[Arbitration - dispute resolution - procedure]

D and C disputed payment for wheat.  In an arbitration hearing 'the dispute' was held to have arisen when final ultimatum for payment had been made. Notice of arbitration was required within '90 days', the issue was 90 days from what? The arbitration was determined by the Grain and Free Trade Association (Gafta). 

Held: Clause 2.2 of the Gafta terms was silent on the issue of when a dispute had arisen.  It would depend upon when the request for payment had been ignored, which could either be before or after an invoice had been sent.

Appeal allowed, case remitted

McCook v Lobo
[2002] CA

[ADR - cost implications for mediation not applicable where there is no prospect of success]

D engaged C to refurbish premises. C fell from a ladder and was injured.  During the negotiations D's solicitor failed to answer a letter suggesting mediation.

Held: D's solicitors should have replied to the claimant’s letter as a matter of courtesy and because of the risk of having to explain to court why they had not considered mediation. However, in the instant case, mediation would have had no realistic prospects of success and there was no reason to deprive D of any costs.

Peach Grey v Sommers [1995] DC

[Tribunals - interference with witness, contempt]

D, a solicitors' clerk claimed wrongful dismissal by his previous employers.

Held: Intentional interference with witnesses in proceedings before an Employment Tribunal - which exercises the judicial power of the state - is a contempt of court and punishable as such.

D committed to prison for a month

Pepper v Healey [1982] CA

^[ADR - arbitration - automatic referral in small claims procedure]

C claimed damages arising out of a motor collision which the D said had never occurred. C had no insurance against legal costs and so was obliged to conduct the case herself.
D was insured and legally represented. In that situation the registrar thought it unreasonable to send the case to arbitration.

Held:  This authority was relied on as establishing a general rule.
 

Rose v Rose [2003] CA

^[ADR - the role of FDR In divorce proceedings]

An FDR (financial dispute resolution) agreement had been reached following negotiations between the parties upon a clean break. The judge had found in favour of the wife and agreed that she should receive £3.5m. The husband wished to change his mind basing his legal right on the fact that the order had not been a final order.

Held: The agreement amounted to an order of the court which was binding on the parties.

Judges conducting FDR hearings would be able to offer an early neutral evaluation.

A FDR hearing was an invaluable mechanism which ought always to be carefully considered.

The wife won

Stefan v General Medical Council (1999) PC

[GMC - common law duty to give reasons]

The GMC's Health Committee suspended a doctor because of a medical condition, but refused to state reasons for its decision.

Held: in this case there was a common law duty to give reasons. The only right of appeal from the committee's decision is on a point of law, the committee's functions were akin to those of a court. The reasons given need not be lengthy but should tell the parties in broad terms why the decision was reached.

The rule requiring decisions exceptionally might now be regarded as the norm.

Suspended doctor succeeded

Wyatt v Maxwell Batley (2002) Ch Div

[ADR - some demands for mediation can be unreasonable]

MB a firm of solicitors drafted a document for W.  The document concerned social security charges payable on an employee pension scheme.  W wrongly advised a Belgian company on the basis of the document, and had to pay damages.  W brought an action against MB for a contribution (a Pt 20 claim).

W’s claim against MB, failed entirely. MB on 3 occasions declined to participate in mediation. W contended that the court should deprive MB of some of the costs which they might otherwise have been awarded.

Held: MB was entitled to all of their costs of the proceedings. It would be a grave injustice to MB to deprive them of any part of their costs on the ground that they declined W’s self-serving invitations (demands would be a more accurate word) to participate in the mediation.

MB won in part