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ARBRIX: 1986 to 2013 A rapidly changing landscape

ARBRIX: 1986 to 2013 A rapidly changing landscape. Nicholas Cheffings Chair, Hogan Lovells International LLP. 12 November 2013. Ch - ch - ch - ch -Changes .

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ARBRIX: 1986 to 2013 A rapidly changing landscape

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  1. ARBRIX: 1986 to 2013A rapidly changing landscape Nicholas Cheffings Chair, Hogan Lovells International LLP 12 November 2013

  2. Ch-ch-ch-ch-Changes Ch-ch-ch-ch-Changes(Turn and face the strain)Ch-ch-ChangesDon't want to be a richer manCh-ch-ch-ch-Changes(Turn and face the strain)Ch-ch-ChangesJust gonna have to be a different man

  3. 1986: That was the year that was • The US bombs Libya • Chernobyl explodes • "Fortress Wapping" opens • M25 completed • Perestroika and Glasnost • Alex Ferguson appointed Man Utd manager • The world's first laptop computer

  4. Then: The Judicial Lottery

  5. Now: The Superior Court

  6. Woolf (and Jackson) reforms • CPR • Pre-action protocols • Case management • Costs penalties • Before/after event insurance • Conditional/contingency fees • Proportionality and cost budgetting The hourly rate rewards the slow and the ignorant lawyer at the expense of the speedy and knowledgeable lawyer (Lord Neuberger)

  7. Mediation 1986 2000 2013 2020 ? Litigation technique Progressive thinking ? American fad

  8. Adjudication • 13 years of construction dispute resolution • An element of rough justice - but finality • Courts focused on enforcement rather than accepting jurisdictional challenges • The referring party has a big advantage, particularly in case of large, complex claims • However, sometimes just adds another layer to the DR process (with increased cost and delay)

  9. Expert Determination • What went wrong? Investigation and Opinion Agreed Facts Agreed Comparables Reports Replies No investigation Determination

  10. Arbitration • Party autonomy • The good, the bad and the (potentially very) ugly • PACT control of the process acceptance of the process over-engineering of the process

  11. The Tribunal system • First Tribunal (Property Chamber) • old LVT, Adjudicator to HMLR, Rent Assessment Committee etc • Upper Tribunal (Lands Chamber) • old Lands Tribunal • Superior Court of Record • Lindblom J, President; Martin Rodger QC, Deputy President • allocated judges include Morgan J; planning/CPO specialists • Why stop here? • lease renewals • dilapidations

  12. Expert Witnesses v Advocates • Old debate • New solution? • Hot-tubbing I I can't say that because I don't believe it IbBuB But that doesn't matter

  13. Dispute Resolution – the future • Who is in the driving seat? • Dispute avoidance – a reality? • Making change happen • E-disclosure/E-documents (cf. Sedley's Law of Documents)

  14. Sedley's Laws of Documents • Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical • Documents shall in no circumstances be paginated continuously • No two copies of any bundle shall have the same pagination • Every document shall carry at least three numbers in different places • Any important documents shall be omitted

  15. Sedley's Laws of Documents • At least 10% of the documents shall appear more than once in the bundle • As many photocopies as practicable shall be illegible, truncated or cropped • At least 80% of the documents shall be irrelevant. Counsel shall refer in Court to no more than 10% of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate • Only one side of any double-sided document shall be reproduced

  16. Sedley's Laws of Documents • Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original • Documents shall be held together, in the absolute discretion of the solicitor assembling them, by: a steel pin sharp enough to injure the reader; a staple too short to penetrate the full thickness of the bundle; tape binding so stitched that the bundle cannot be fully opened; or a ring or arch-binder, so damaged that the two arches do not meet

  17. Dispute Resolution – the future • Who is in the driving seat? • Dispute avoidance – a reality? • Making change happen • E-disclosure/E-documents (cf. Sedley's Law of Documents) • TV/radio/on-line broadcasting • On-line/webcast dispute resolution? Live "in play" odds Free £10 bet Claimant to lose on all claims Put down of the day Judicial intervention Expert witness to crumble Court to rise early Spread bet on use of "with respect my Lord"

  18. The Future Whatever it holds – make the most of it

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