Arbitration – the Alternative to Litigation

Experience

Arbitration historically is associated with construction and property disputes. But it really spans wider areas of commercial activity. A well-managed arbitration can be far more efficient, less costly and quicker than going to court. A time limited arbitration can be agreed or not – but in either event arbitration can be up to 4 times as quick as the courts in getting the matter to a full hearing. Once there’s an award it has the same effect as a court judgement and of course there are not the swinging court fees.

Anthony Glaister is a Fellow of the Chartered Institute of Arbitrators and has arbitrated since his first arbitration in 1993. He is a specialist property and partnership arbitrator and sits on the NFU specialist panel of agricultural arbitrators. His experience as a construction adjudicator also enables him to handle complex construction arbitrations. During 2016 he had 6 appointments ranging from partnership to breach of contract disputes including 4 NFU appointments.

Commendation

Paul Bennett a partner with Endeavour Partnership LLP said as follows: ‘I am happy to add my few words about Anthony Glaister’s experience and ability as an arbitrator. I have just been involved in a farming partnership dispute before him. He knows the practicalities of farming and was a very efficient and accommodating arbitrator. The matter reached a conclusion within 6 months of his appointment, a much shorter timescale than the parties would have endured had they gone to court; but also rather shorter than would have been the case before many an arbitrator. I think both parties went away well satisfied with the way it was handled’ 8/9/2016

When to Use Arbitration?

Since the Arbitration Act was passed in 1996, this formal process has improved markedly. Arbitrators now have a duty to manage the arbitration in a cost effective and efficient way. They can use methods like costs capping and summary procedures to cut delay and cost; they tend to more investigative and the process ought to be less adversarial than it used to be. Occasionally mediation, conciliation or simple expert assessment can be used within arbitrations if appropriate.

Paul Bennett also had these observations:

“You cannot use Arbitration for all sorts of commercial dispute, nor should you.  But in a whole range of cases Arbitration is a process which is much superior to litigating through the courts.

I have just finished a substantial partnership matter where arrangements have been put in place for a partner to exit, some farming machinery to go with that partner, and for a substantial payment to be made. 

There were various questions before the Arbitrator including whether some substantial assets were held within the partnership or owned by the partners individually, and particularly whether clauses in the Partnership Deed governing valuation and payment methods were still operative.

All this was resolved in about six months of active work.  In litigation it would have taken 2 to 3 times as long.

We had three directions appointment, two by telephone and one live. 

The Arbitrator, who knew just what he was doing and was operating well within his own sphere of expertise, quickly formed the view that both solicitors also knew what they were doing and the matter could therefore be “directions lite”.

We were therefore able to do without:-

  • Formal heavy directions
  • Over precise timetable
  • Applications for extension of time for minor odds and ends
  • CMC
  • PTR
  • Form H
  • Lists of documents
  • Revisions to Form H

It wasn’t a cheap matter to run to Arbitration but it was vastly less expensive than it would have been to litigate it.

And perhaps most important of all, as well as the confidentiality and keeping away of partnership disputes from public gaze, if a matter is being arbitrated it is vastly more relaxed.  It is still formal.  It is of course still legally binding.  But the Arbitrator, really any Arbitrator, is concerned to deal with the important issues and if that means that unexpected points come up and parties need a bit of time to consider then that is never a problem.  Contrast that with being told by a Judge that you have to start the case by a certain time, have to finish it by a certain time, court resources as scarce, etc, etc.

Well done the system of Arbitration!”

08.09.2016.

Paul Lloyd Bennett
The Endeavour Partnership LLP

What is the Cost?

An hourly rate of between £150 and £200 is agreed applicable to the size and complexity of the dispute unless a fixed price scheme is chosen with fees as low as £2,000 such as that run by the Yorkshire Arbitration Scheme or the Business Arbitration Scheme

Typical Arbitrations

Agriculture

Contract, partnership, property (AHA and freehold)

Construction

Arbitration or Adjudication:

  • Defects,
  • Delay and Disruption,
  • Domestic contracts,
  • Design and Build,
  • Final account
  • general contractual disputes with values up to £3 million

Industry specific:

  • Timber trades
  • Nursing homes

Partnership

  • Farming
  • Professional (accountants, solicitors, surveyors)
  • Nursing homes
  • Property