This is the third and final in a short series of articles suggesting some learning points for party wall surveyors arising from consideration of selected Articles from the UNCITRAL arbitration rules 2013 (“the Rules”).
Article 17(1):
“Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceedings each party is given a reasonable opportunity of presenting its case. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute.”
The Act merely provides for disputes to be determined by award, but does not make any particular provision as to the manner in which the tribunal of surveyors should resolve such disputes.
There are, however, several implicit requirements of dispute resolution under section 10 of the Act which are made explicit in Article 17(1), namely:
(1) The tribunal can decide for itself how to resolve the dispute – in other words, there is no set procedure which must be followed, but rather the surveyors can tailor the dispute resolution process to the dispute in question. With awards made under section 10(10) this is often a more or less collaborative process with a draft award being altered on one or more occasions to fit the ultimately agreed position. With more heavily disputed issues, where substantial sums of money are at stake, and more commonly in relation to section 10(11) awards, this may mean formal written submissions being made on behalf of both parties, and sometimes even an informal hearing taking place before the third surveyor. As applies to the issue of costs, discussed above, the key thing for the surveyors to remember is that the dispute resolution process should be proportionate to the dispute.
(2) Parties must be treated fairly – primarily such fairness will be reflected in the requirement for each party to be given an opportunity to make submissions. In a typical third surveyor referral situation this does not necessarily and inevitably mean that the parties should be given an opportunity to make submissions additional to those made by the party-appointed surveyors, but the third surveyor would generally be wise to check with the parties themselves that they are content to adopt the submissions made by their appointed surveyor. It is in relation to fairness that third surveyors need to be careful to ensure transparency – phone calls or meetings between the third surveyor and only one of the party-appointed surveyors should be avoided. The relatively common practice of one of the party-appointed surveyors phoning the third surveyor to obtain a “steer” or to “brief him on the background” prior to a referral is likely to be viewed in a very critical light by any court reviewing the propriety of a consequent award.
(3) Avoiding unnecessary expense and delay – there is always a tension in party wall disputes between a building owner’s desire to be able to get on with notifiable works, and the desire of the adjoining owner to ensure that those works will not cause problems for the adjoining owner or his property. Although less common, it is not unheard of for adjoining owners to seek to obstruct and/or delay the building owner’s works, for a variety of reasons. The tribunal of surveyors does have a duty to get on with the dispute resolution process, always bearing in mind, as well, its obligation to keep the costs of that process proportionate. I often see both parties’ surveyors blaming the other for the time it takes to obtain an award. In this regard, surveyors would be well-advised to read the comments of HHJ Bailey in the judgment of Welter v McKeeve (unreported, 27th November 2018) at paragraphs 165 onwards, where the judge strongly disagreed with the building owner’s attempted negative characterisation of the adjoining owner’s surveyor’s conduct. In any event, surveyors should at least attempt to be objective about the cause and extent of delay, both by themselves and their opposite number, and to seek to minimise any such delay. Often this can simply come down to good communication.
(4) A fair and efficient process – although fairness is dealt with above, efficiency is something which many surveyors ought to be more alive to. There is a tendency for electronic communications, particularly emails, to make people lazy. For example, a brief telephone call between the party-appointed surveyors at the outset ought to enable the adjoining owner’s surveyor to discuss what, if any, further documentation he thinks he might require, and for the building owner’s surveyor to provide explanations for many of the queries which might have sprung to mind from reading the notice itself. I have seen the same process, undertaken by email, literally take months.
Article 17(2):
“As soon as practicable after its constitution and after inviting the parties to express their views, the arbitral tribunal shall establish the provisional timetable of the arbitration. The arbitral tribunal may, at any time, after inviting the parties to express their views, extend or abridge any period of time prescribed under these Rules or agreed by the parties.”
Although I have very occasionally seen it happen, it is surprisingly rare for the tribunal of surveyors to set out a timetable at the beginning of the dispute resolution process. There are, however, several good reasons for doing so. Perhaps most importantly, setting out a timetable at the outset – particularly where both parties and/or their surveyors have had input into that timetable – both sets and manages the parties’ expectations as to resolution of the dispute. If both parties and their surveyors agree that the process should take two months before it starts, this allows a much more objective assessment of any subsequent delays, which must be set against this initial assessment. It can also be helpful to set out the steps each party must take to move from initiation of the dispute to its resolution – for example, provision of information, requests for further information, provision of further information, draft award, amendments to award, final award. Whatever steps the surveyors agree are necessary prerequisites to an award should be given appropriate deadlines. Whilst such deadlines can always be extended by agreement, their imposition gives impetus to the process, and requests for extensions must be justified.
Article 36(1):
“If, before the award is made, the parties agree on a settlement of the dispute, the arbitral tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by the parties and accepted by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms. The arbitral tribunal is not obliged to give reasons for such an award.”
It is actually quite rare, albeit not unheard of, for parties to agree matters between themselves after disputes have arisen and been referred to the tribunal of surveyors. Whilst I would not necessarily encourage the surveyors to “issue” anything as formal as an “order for termination”, it would generally be prudent for the surveyors to record in an email that the dispute, or part of the dispute has been settled between the parties themselves, by direct agreement. Obviously, it would generally also be wise for the parties who have so settled a dispute to record that settlement in writing, even if briefly. The case of Mohamed v Antino (unreported, 13 December 2017, per HHJ Bailey) is a good example of where the parties did settle the disputes between them, and recorded that agreement in writing.
