My Toughest Dispute as Arbitrator
By Robert Gemmell, Director
Since 2002 I have received well over 100 appointments to act as arbitrator, adjudicator or expert determiner. I have dealt with all manner of disputes ranging in value from several thousand AUD$ to several hundred million AUD$. This article describes the toughest to date of all my appointments. It was my second appointment as arbitrator which initially appeared to be relatively straightforward. Would I consider it tough now? Maybe not, but it certainly was then!
The claimant submitted its claim and wanted me to decide whether a settlement agreement had been entered into and, if so, for how much.
The respondent informed me that, due to counsel’s availability and that it intended to introduce a counterclaim, that a further six weeks was required to make its submission.
After six weeks, the respondent then requested more time for submissions and cited as a reason a death in the family of a key employee giving evidence. Overseas travel was allegedly required to go to the funeral. “That is not correct, the respondent is lying, no more delays”, cried the claimant, demanding proof that someone had died and copies of passports to prove travel. More delays ensued.
I decided not to require proof of death, a bit of a sensitive issue I thought, but I did require proof of travel by disclosure of a certified copy of the respondent employee’s passport.
“That is not correct, the respondent is lying, no more delays”, cried the claimant
I then issued a peremptory order. I directed that, unless the respondent submitted its defence and counterclaim by a certain date I would direct that pleadings would be deemed to be closed and that I would proceed to an award on the basis of the materials properly provided to me – the respondent promptly served its defence and counterclaim.
The counterclaim alleged a whole host of defects in the construction works and an expert report had been submitted in respect of the alleged defects. The issues in dispute included valuation of the works, quality of work and materials, late completion, repudiatory breach of contract, loss of profit and mitigation.
The claimant served a reply and defence to the respondent’s defence and counterclaim and brought on board his own expert.
There was then a three-day hearing at the CIArb, Bloomsbury Square, London. There were over 10 witnesses who gave oral evidence and to save time, I had directed that each of the witnesses’ statements would stand as evidence in chief, opening submissions were to be in writing, sent to me one week before the hearing. One of the parties faxed (no emails in those days!) its opening submissions to me late Sunday evening – the hearing was the next day.
At the hearing one of the witnesses did not speak English and required a translator – I did have prior notice of this, however. Then, one of the witnesses admitted to being an illegal worker. I then had to ask one of claimant’s witnesses to leave the hearing for sending signals to other witnesses during the hearing. After listening to all the witnesses of fact being examined, under oath, I wondered who was telling the truth. Ah, just different diametrically opposed recollections from memories that fade over time I thought!
…one of the witnesses admitted to being an illegal worker. I then had to ask one of claimant’s witnesses to leave the hearing for sending signals to other witnesses during the hearing.
There were two quantum experts, one on each side. One was slightly inconsistent and appeared to be advocating his party’s position. It was therefore much easier to accept the evidence of the younger, less experienced, expert, who was objective, consistent, thorough in his understanding and therefore more reliable.
I completed my award and notified the parties that it was ready to be dispatched to them upon payment of my fees. The claimant went into liquidation though.
I went to the county court and picked up a claim form to chase my fees. I filled in the form and submitted it to the court. There was a hearing at the Central London County Court. The judge found in my favour and awarded me my costs on an indemnity basis: now that was good news – for me, anyway.
If the parties cannot agree costs, then the court will ‘assess’ the costs. The Supreme Court awarded me 95% of my costs including interest. All over now? Not quite…
Months later, after putting a legal charge on several properties, the respondent eventually paid my fees and costs.
Over 100 appointments later, I’ve experienced nothing like that again – thank god!