The court considered whether an arbitrator had a duty to raise a point missed by counsel.
Held: Robert Goff LJ: ‘In truth, we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been raised in the case without drawing the point to his attention so that he may have an opportunity of dealing with it, either by calling further evidence or by addressing argument on the facts or the law to the tribunal.’ Ackner LJ: ‘Where there is a breach of natural justice as a general proposition it is not for the courts to speculate what would have been the result if the principles of fairness had been applied. I adopt, with respect, the words of Mr Justice Megarry in John v Rees [1969] 2 All ER 275 at p 309 where he said: ‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’ But, in this case, speculation does not arise. If the arbitrators had informed the parties of what they had in mind, the consequences would have been obvious. Firstly, the charterers would have sought to persuade the arbitrators that it was common ground on the evidence that there was adequate room to turn the vessel and that, therefore, the arbitrators should decide the dispute according to the evidence. If they failed so to persuade the arbitrators, they would have sought, and would have been entitled to, an adjournment. Having obtained an adjournment, the charterers would have called the evidence which in fact was called at the sub-arbitration and would have satisfied the arbitrators that the turning area was adequate.’
Robert Goff LJ, Ackner LJ
[1984] 2 Lloyd’s Rep 66
England and Wales
Citing:
Cited – John v Rees and Others; Martin and Another v Davis and Others ChD 1969
The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .
Cited by:
Appeal from – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Cited – Carillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .
Cited – Bandwidth Shipping Corporation v Intaari (‘Magdalena Oldendorrf’) CA 17-Oct-2007
An arbitrator hearing a case, and who appreciated that counsel had failed to take a point, should draw counsel’s attention to the point. No duty could arise if the arbitrator did not himself see the point.
An applicant under section 68 faces a . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Arbitration
Updated: 11 December 2021; Ref: scu.235381