AT&T Corp v Saudi Cable Co. (2000) CA
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.
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.
Essex CC (2000) CA
- tribunals - bias - right to representation by lay person - contempt of
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.
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  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.
The second delegation was
and the manager's decision was therefore a nullity.
Broadcasting Complaints Commission ex p Barclay, R v
[BCC bound by
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
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.
The Ombudsman had wide powers of
investigation and a wide discretion to decide the best way to conduct an
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.
C v C  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.
The court would
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.
Cable & Wireless plc v IBM United Kingdom Ltd  QBD
^[ADR - mediation
- courts power to order mediation, in suitable cases]
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
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.
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.
courts to decline to enforce contractual references to ADR would fly in
the face of public policy as expressed in
Proceedings adjourn for ADR, which failed and the case resumed in the
others v Plymouth City Council  CA
^[ADR - courts
powers in disputes between public authorities and the public - importance
of avoiding litigation]
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
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.
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.
legal aid authorities should co-operate in support of this approach.
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.
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.
litigation is necessary the courts should deter the parties from
adopting an unnecessarily confrontational approach to the litigation.
order by agreement
Civil Service Appeal Board ex p Cunningham, R v  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.
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
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
^[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.
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.
Department of Economic Policy and Development of the City of Moscow and
another v Bankers Trust Co and another  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
^[ADR - lay
members of ET's not to prefer their knowledge to witnesses' without
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.
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
Case remitted for
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.
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
D won, but no
costs order made.
was applied in
Leicester Circuits Ltd v Coates Brothers plc  (there is a
prospect that mediation will succeed, and an unexplained withdrawal has
Gold v Mincoff
Science & Gold (a firm)
[ADR - failed ADR
changes the nature of the action]
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
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.
Govell v United Kingdom (1998) ECHRCommision
police complaints procedure not adequate remedy]
rights had been violated by secret surveillance.
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
courts will 'encourage' appropriate use of mediation by adverse costs
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
the courts will take into account:
nature of the dispute;
merits of the case;
extent to which other settlement methods had been attempted;
the costs of the alternative dispute resolution would have been
any delay in setting up and attending the alternative dispute resolution
would have been prejudicial;
the alternative dispute resolution had a reasonable prospect of success.
Hurst v Leeming  HC
Hurst v Leeming  Ch Div
[ADR - where
mediation is inappropriate it can be refused]
barrister, was sued for professional negligence by his former client C, a
solicitor. D had represented C in failed actions against C's former
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.
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.
Lesotho Highlands Development Authority-v- Impregilo SpA and Others
[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
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
Held: Their Lordships refused to disturb the Tribunal’s
award. They upheld the principle – of “great importance” - of minimal
intervention in arbitration proceedings.
Comment: The Act was examined textually. A high threshold was
required for the courts to intervene in arbitrations.
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
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)
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
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
McCook v Lobo
[ADR - cost
implications for mediation not applicable where there is no prospect of
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.
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
interference with witness, contempt]
D, a solicitors'
clerk claimed wrongful dismissal by his previous employers.
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  CA
^[ADR - arbitration - automatic referral in small
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.
Joyce & Wynne v Liverpool City
Council  it was held that this did not represent a general
rule but represented an exercise of judgment
in when the small claims arbitration procedure was, less well
district judge conducting a small claims arbitration is under a clear
duty to ensure that the case of the claimant does not go by default. If
the defendant’s conduct puts the claimant to unreasonable expense the
claimant can be compensated.
Rose v Rose  CA
the role of FDR In divorce proceedings]
(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.
The agreement amounted to an order of the court which was binding on the
conducting FDR hearings would be able to offer an early neutral
hearing was an invaluable mechanism which ought always to be carefully
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.
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.
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
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.
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