What is Arbitration?

Arbitration a quasi-judicial procedure that falls within the family of Alternative Dispute Resolution (ADR) procedures that can be adopted to resolve a dispute either through written submissions or through  hearings like the Court and can be applied to any type of dispute.

The Party commencing the Arbitration process is called the claimant and the recipient party is the respondent. The Arbitrator is appointed either by agreement or by an independent nominating body.1 th parties can represent themselves or instruct professionals 2 present their case to the The arbitrator considers both sides, looks at the evidence decides what the outcome should be. In some cases, the arbitrator may choose to have hearings3 (meetings) with both parties, but never in isolation.

The arbitrator releases their decision in writing, this is called an award and is legally binding.

Many trade associations, contracts and indeed the Courts recommend ADR in the first instance to progressing to Court.

Why? It is more economical and exceptionally quicker than litigation, more importantly it is confidential to the parties.

The Arbitrator's Role

The arbitrator sets out the procedure unless the parties have reached an agreement on the structure and process. Each side is allowed to submit its evidence and tell its story and to respond to the case put by the other side.

The arbitrator gathers all the evidence called submissions and will consider the complaint based only on the written claim and supporting evidence. Sometimes the claimant or respondent party may be asked to send in further details. Sometimes, in a construction consumer case, the arbitrator may request a site inspection.

If the case is complex and written evidence is not enough to decide the outcome, the arbitrator can meet the other parties on at a property (if construction dispute) or anywhere the arbitrator reasonably considers appropriate to ensure the matter can be heard fully. These hearings (meetings) are formal and structured any evidence is given under oath or affirmation. 

It is up to the arbitrator to decide what process should be used to gather all the information needed to make a decision. The arbitrator can seek technical and legal expert advice on any particular aspect of the dispute.

The Arbitrator should not apply his own opinions or prejudices or introduce evidence on behalf any party, the Arbitrator is there to independently manage the dispute resolution process and make a finding by award on the evidence presented to him. The arbitrator just like a judge should remain impartial at all times.

• 1 The Chartered Institute of Arbitrators.

• 2 Dr. Philip Antino.

• 3 In person or by Zoom.

Costs

The arbitrator can decide who pays the costs and what proportion thereof. Under section 61 the arbitrator can apply the principle that costs follow the event. This can include all costs including appointment fees etc.

A party may also be entitled to interest on the claim and can be claimed from the date the award is made until the date the money is paid.

The award can be registered in Court and the successful party can force the other party to pay any money due to you.

It is very hard to challenge a decision the arbitrator has made. A party cannot appeal because they do not agree with the decision. 

However, if you believe the case was not handled properly, you should obtain legal advice about what to do next. You may be able to make an appeal to Court on a point of law.

Liability to Arbitrators' costs

Both parties are jointly and severally liable for the arbitrators’ fees and outlays incurred during the arbitration.

The Housing Grants, Construction and Regeneration Act 1996
The Scheme for Construction Contracts (England and Wales) Regulations 1998

Dr. Antino has considerable experience in adjudication and hope the following is of assistance and is available to receive an appointment as the Adjudicator or to assist clients in commencing and/or responding to Adjudication.

Commonly referred to as Adjudication, the statutory scheme 1998 No 649 introduces a statutory right to all commercial construction contracts to manage disputes as and when they arise through Adjudication. Adjudication is intended to promote early resolution of the dispute to ensure relationship to continue and to ensure fast payment of contractor’s monies whilst leaving the dispute to a final conclusion through the Courts and or Arbitration. 

Advantages

• The adjudicator provides an interim decision on a dispute which must be complied with.

• The adjudicator must reach their decision within a fixed time frame of 28 days.

• The parties can agree extensions of time,  

• The adjudicator operates within agreed procedures between the parties or the Act;

• The adjudicator operates within the HGCRA or the scheme when the parties are unable to agree the procedures;

• If a party does not accept the decision, then it can be referred to arbitration or litigation;

• The process is confidential;

• The adjudicator can be selected by the parties prior to the contract or by a nominating body.

• It is cost efficient;

• it is designed to maintain relationships going forward for the remainder of the contract;

• it is intended to bring about speedy payment of monies owed to contractors;

Disadvantages

• Operates within a very tight time frame, can be used by a party to ambush their opponent.

• The Courts will uphold an adjudicators decision even where they have answered the right question but in the wrong way;

• The Courts recognise that the adjudication process is inherently quick and therefore is by nature likely to incorporate errors;

• The adjudicator has immunity;

• The time frames for the adjudication process cannot be extended unless by mutual agreement;

• if the party believes the decision is wrong, they must still comply with the award and wait for a later challenge through the courts; 

• Often seen as rough justice; and

• Can only deal with one dispute at a time (unless the parties agree to multiple disputes).

When there is a building dispute, irrespective of whether you're the claimant or the defendant, you will require independent professional advice. Dr. Antino has a wide range of experience with a proven history of cases to his credit and maintains that his most successful cases are the ones that avoid the costs and stress of going to Court.

Litigation is an extremely costly and stressful process that should be avoided at every opportunity and as recognised by the Courts, ADR should be considered.  However, when all other mediums have been explored and failed, then going to Court with the best team possible is fundamental to ensuring a successful judgment is obtained.

Dr. Antino’s knowledge and expertise to act as an expert witness either as a single joint expert or on behalf of the claimants and defendants, in the following areas:

• Surveyors Professional Negligence Claims;

• Party Wall Matters;

• Defective Building Works;

• Housing Disrepair;

• Landlord & Tenant-Private-Commercial; and

• Boundary disputes

Dr. Antino can assist you from the beginning of the dispute up to and through and to the process:

1. As a Single Joint Expert (SJE);

2. An expert for either the Claimant or Defendant/Respondent;

The overriding duty of an expert is to assist the Court and/or Tribunal and thus overrides any obligation to the party that has engaged the expert.

The expert’s duty is to provide impartial evidence within their expertise and the report should reflect the expert’s independent professional opinion and conclusions without being influenced by any party directly or indirectly connected with this dispute.

Dr. Antino’s expert reports comply with part 35 of the civil procedure rules specifically Rule 35.3 and 35.5.

For an informal discussion, please contact Dr. Antino on 01245 492495, submit our online form or alternatively email him directly Dr.Antino@apaproperty.com.