Conflict Avoidance and Dispute Resolution

Question 1

What are some different forms of ADR?

Answer 1

1. Independent expert
2. Arbitration
3. Mediation (not a resolver)
4. Conciliation - similar to mediation but involved separate meetings and a joint meeting - used in family court
5. Adjudication - used in construction contract disputes or in consumer claims - CEDR uses this for example

Question 2

What are the characteristics of an Independent Expert?

Answer 2

Does own investigation,
can only award own costs unless otherwise directed,
can determine what he likes,
can be sued for negligence,
hard to appeal determination unless it is based on a misinterpretation (under Level Property v Balls Brothers)
Can’t order disclosure

Question 3

What is the RICS document on Independent experts?

Answer 3

“Independent Expert Determination”

Question 4

What are the characteristics of an Arbitrator

Answer 4

1. Governed by the Arbitration Act 1996
2. Has power over all costs
3. Can only use information provided by the parties
4. Must find in-between both parties submissions
5. Cant be sued for negligence
6. Can order disclosure
7. can appeal award in limited circumstances on 3 grounds

Question 5

What are the 3 grounds you can oppose an arbitrators award on?

Answer 5

1. Point of Law
2. Outside of Jurisdiction
3. Serious Irregularity

Question 6

How long do you have to appeal an arbitrator’s award? Is there any case law on this?

Answer 6

Within 28 days, but minister of Finance v International Petroleum Investment Company had an extension to appeal due to “unusual and special case” which resulted in the appeal being served 511 days after the award.

Question 7

What are some reasons that an arbitrator may have acted outside of their jursdiction?

Answer 7

made an award on something they weren’t asked to award on, no valid agreement in place for them to act.

Question 8

What are some reasons that an arbitrator may have acted “with serious irregularity”?

Answer 8

Failure to comply with duties outlined in s.69 of the Arbitration Act 1996.

Question 9

What is the hierarchy for evidence in the Handbook of Rent Review?

Answer 9

1. Open Market Lettings
2. Lease renewals (it makes a difference whether it is inside or outside the act)
3. Rent Reviews
4. RR - Independent Expert
5. RR - Arbitrator
6. Court Determination under LL&T Act
7. Heresay
8. Sale and Leaseback
9. Surrender and Renewal
10. Intercompany arrangement

Question 10

What are the characteristics of a Calderbank offer?

Answer 10

1. Created via the Calderbank v Calderbank case
2. Without prejudice save as to costs
3. Can help protect you on costs, but tribunal has total discretion over what weight should be given to it
4. Flexible, can change timescale for acceptance as long as it is reasonable
5. Creates a binding contract once accepted
6. Can be used when Part 36 doesn’t apply

Question 11

When might a calderbank notice be invalid?

Answer 11

1. Where it has been served with an unreasonable acceptance time (minimum is usually 21 days)
2. Where is has been served a few days before trial - it is meant to be a meaningful offer to settle and not used as a cost protection tactic

Question 12

What are the characteristics of a Part 36 Offer?

Answer 12

1. Governed by the Civil Procedure Rules Part 36 (hence name)
2. Only applies where CPR applies - i.e court
3. Must state that it is intended to have the consequences of the s1 of part 36
4. Its much more prescriptive than a calderbank offer and requires legal counsel to decide
5. Has specific additional consequences if the Part.36 offer is made and refused and then not beaten at trial.
6. Provides more certainty on how litigation costs will be treated

Question 13

What is part 56 of CPR?

Answer 13

It makes it clear that parties should make appropriate attempts to resolve dispute via ADR before going to court and if you fail to engage ADR then it might have adverse cost implications

Question 14

What are some cases relating to not using ADR as a method prior to court?

Answer 14

Dunnet v Railtrack Plc 2002 - cost sanctions where one party fails to accept the offer to mediate

Halsey v Milton Keynes NHS Trust - Shouldn’t force truly unwilling parties to refer to ADR, as it imposes unacceptable obstruction in their right of access to court

Question 15

What are some benefits of PACT?

Answer 15

1. Can choose an arbitrator or Independent Expert
2. can mix and match the two depending on what points you want settled
3. Is someone who is proficient in the topic - i.e. joint between law society and RICS so can have a surveyor look at values and lawyer look at points of law
4. greater control and flexibility
5. Cheaper

Question 16

What are some problems of PACT?

Answer 16

1. Must have agreement of both parties
2. Can be just as costly and time consuming

Question 17

What is the difference between PACT applications?

Answer 17

1. Pre-issue PACT where you havent applied to court yet - have to make it clear that you need to agree to a written extension of the s.25 or s.26 notice or right to renewal will be lost for the tenant. Need a Written Agreement to enter into PACT in this case.
2. Post-Issue Pact - You need a consent order from the court in this case to agree to stay proceedings until the resolution of PACT

Question 18

What do you need to agree in your pre-issue or post-issue application?

Answer 18

1. Whether you are having an arbitrator or independent expert
2. The terms which are agreed and terms which are in dispute
3. Matters which are to be decided by 3rd party
4. Identify the 3rd party or the mechanism that will appoint them
5. Agree the valuation date
6. If using independent expert - what power they will have over costs
7. If Pre-issue PACT then you need to agree how the tenant can decline and leave as revocation provisions under S.36 of LL&T act

Question 19

What is the process of going to court under the LL&T act 1954?

Answer 19

1. serve the relevant notice
2. Make application by deadline in notice (unless agreed an extension in writing)
3. Once application is made the Civil Procedure Rules apply.
4. Application made by solicitor under part 8 of CPR
5. Court will decide whether they want to allow certain evidence, based on the overriding objective in CPR 1.1 “must consider whether the costs are proportionate” and can refuse expert witnesses for example if it is felt the costs are not proportionate.
6. Costs and Case Management Conference (Order case management directions up to trial; and consider estimated costs of the dispute and consider how proportionate the costs are to the value of the dispute).
7. Trial
8. Put together trial bundles
9. Consequential hearing following judgement
10. New lease usually issued 3-4 months after trial

Question 20

What can you do as a tenant if you do not like the courts judgement?

Answer 20

Must apply under S.36 of the LL&T act for a revocation order within 14 days of the judgement. The current tenancy will then continue for a period considered reasonable for the landlord to relet the premises.

Question 21

What must you do before acting as an expert witness?

Answer 21

Reissue terms of engagement to ensure that you do not have conditional fee basis and explain that your CHP does not apply any longer because your duty is to the tribunal and not to your client.

Question 22

When is a Surveyor/Advocate role accepted and what are the implications of this?

Answer 22

It is accept in rent reviews and where it accommodates access to justice at a cost which allows it to be brought forward.

In both “Surveyors acting as Advocates” and “Surveyors acting as Expert Witnesses” it states that you must ensure you distinguish between the two different roles at all times.

Question 23

What must expert witnesses outline in their reports?

Answer 23

1. Detail qualification and experience
2. Substance of instruction
3. Consider all matters material to the dispute
4. Make it clear when something falls out of your competence
5. Reference literature
6. Distinguish between fact and opinion
7. If you cant make an opinion without qualification then you need to outline that qualification
8. Statement of Truth and Declaration

Question 24

What would you include in the statement of truth?

Answer 24

“I confirm I have made clear which facts and matters which are within my knowledge and which are not. Those in my knowledge are true, The opinions expressed represent my true and complete professional opinion. understand that contempt of court may be bought to anyone who make a false statement in a document verified by a statement of truth”.

Question 25

What does a declaration include in an expert witness report?

Answer 25

1. Report has identified all material facts
2. Complied with duty to court/arbitrator etc
3. Confirm you’re not on a success based fee
4. Have no conflicts
5. Complied with tribunal requirements
6. Confirm the report complies with RICS “Surveyors Acting as Expert Witnesses”

Question 26

Do you need to do a statement of truth and declaration in replies too?

Answer 26

Yes

Question 27

Can an expert witness be sued for negligence?

Answer 27

Didn’t used to be able, but since Jones v Kearny in 2011 the expert may be held to account for his/her failings; however, a proper reading of the case informs the reader that this is likely to be so only in very rare situations.

Question 28

In your disputed rent review in Slough, why did you think that the landlord might be more open to discussions following the arbitrators award of a nearby suite?

Answer 28

1. It was 28 days after the award and so I knew it was very unlikely that it would be appealed
2. I know that arbitrators awards are not overly high on the hierarchy of evidence under the Handbook of Rent review but felt that it would be a good way of reopening negotiations and may unnerve the landlord’s surveyor
3. I know that to use the information I would need both parties approval and a proforma.

Question 29

When might an arbitrator accumulate costs if they haven’t done any work on the matter yet?

Answer 29

Sometimes a commitment fee is payable if the matter is aborted. A fee payable just for accepting an instruction is not acceptable according to RICS “Surveyors acting as Arbitrators in commercial property rent reviews”.

Question 30

Is a statement of agreed facts binding?

Answer 30

Ordinarily yes, but in the case of Great Dunmow Estates v Crest Nicholson Operations Ltd 2019 it was held under the court of appeal that a misinterpretation of either party when compiling a statement of agreed fact may not be binding.

Question 31

Did you put together the expert report?

Answer 31

I aided my line manager putting it together.

Question 32

How were costs awarded in your rent review in Brighton?

Answer 32

The Independent Expert determined a rent that was in the middle of both parties, and although the landlord did try to argue for a near miss, the Independent expert ordered both parties to bear their own costs and his fees equally.

Question 33

Why did you suggest to your client that independent expert should be seen as a last resort for your rent review in Windsor?

Answer 33

1. No power for IE to determine parties costs
2. Fees for undertaking the work would be minimum £10,000, the minimum rental increase was going to be £10,000 over the 5 years
3. Wouldn’t actually save anything by going to IE
4. RR was 2 years outstanding, outside the act lease and so only had 3 years to go until it would be written off anyway
5. Advised to keep chasing landlord and threaten DRS and even apply for £425 if required to see if this forced the landlord to respond.

Question 34

What is the current base rate?

Answer 34

5.25%

Question 35

Why did you advise your client in Mayfair that they should explore mediation?

Answer 35

1. Under CPR 56 It makes it clear that parties should make appropriate attempts to resolve dispute via ADR before going to court and if you fail to engage ADR then it might have adverse cost implications
2. Mediation has 76% sucess rate on the day and 93% settled shortly after
3. Mediation is cheaper
4. Help craft settlement of dispute that court cant, such as rent free period
5. mediators are trained and accredited by a recognised body

Question 36

Why would the calderbank notice in your Mayfair example cause lower protection on costs?

Answer 36

1. It is at the courts discretion as to what they award based on calderbanks but a lower figure is generally considered to be less protective as it is likely that the court will determine a rent higher than it.
2. if the court gave a rent lower than the calderbank then there would have been a strong case for the landlord to pay my clients costs

Question 37

Why didn’t you suggest PACT to your client in Mayfair?

Answer 37

1. It has to be agreed between the parties and it was unlikely that the other party would agree
2. Solicitors advised that due to the high profile and costs associated, as well as the legal points, it would be best to be run at court.

Question 38

Why did you accept that your client didn’t want to use mediation?

Answer 38

1. Mediation can delay matters if the matter is destined for court
2. Under Halsey v Milton Keynes NHS Trust it was determined that you should consider whether the ADR had a reasonable prospect of success which solicitors and client felt it didn’t in this case.
3. The court can encourage the use of ADR but neither party should be forced to go to mediation if both parties are unwilling.

Question 39

Why did you agree to amend your calderbank notice?

Answer 39

Because it is meant to be a meaningful offer to settle and in this case my client was uncomfortable agreeing to it.

Question 40

What documents have you submitted to court?

Answer 40

I have aided solicitors in putting together a plan which made up part of the trial bundle which showed issues of measurement when valuing the 4 leases separately -
1. where a “void” was as there was a question as to when it was installed and whether we were valuing with or without the void (disregard T’s improvement unless under an obligation or over 21 years old)
2. Where standard things would need to be in place to allow separate occupation i.e stair cases, W/C facilities

Question 41

What was the background of the Halsey principles?

Answer 41

The judge was wrong to award the defendant (Milton Keynes NHS Trust) its costs, because it had refused a number of invitations to mediate.

Question 42

What does pre-action protocol state?

Answer 42

Stresses that litigation should be a last resort