This lecture explains preparation for the final hearing, the most common hearing schedule and how Tribunals normally deal with legal costs.
In this lecture, I will discuss various issues, which are important for the final hearing and the determination of costs. This lecture is not intended to be a guide or advocacy, but if you would like to see good advocacy in practice, I recommend that you visit a website of English Supreme Court, where you can see videos of current and decided cases. A link to the court’s website is here. Alternatively, if you could check out the YouTube videos of one of the most well-known arbitration practitioners Mr. Gary Born, the link to his videos is here.
Preparation For The Final Hearing
Final hearings often do not go as planned, one of the most important things in every final hearing is preparation. You do not want your hearing cancelled at the last minute, especially if you are the claimant, because the hearing venues are not available because the Tribunal did not receive its documents, because your witness does not have an interpreter or of some other purely administrative reasons. I, therefore, suggest that you go through the following check list as soon as the hearing date is set. I copy of the checklist is available as a part of our Arbitration Guide.
The most important things are:
Adequate hearing venues
Break-out rooms
Transcribers
Interpreters for witnesses or experts
Travel visas for witnesses
Agreed and paginated bundles
Preferred bundle format for the Tribunal
Sufficient copies of the bundles for everyone
Arrangements for witnesses to testify on oath or affirmation
Submissions of skeleton arguments
Submissions of costs statements
Hearing Schedule
Once you are satisfied that these things are taken care of, you should discuss with the counter-party and the Tribunal the hearing schedule. Normally you have to proceed in the following way:
Claimant’s opening submissions
Respondent’s opening submissions
Examination in chief of the Claimant’s witnesses (this may or may not be allowed. If it is, it will be the counsellor’s opportunity to ask the witness to clarify things containing in his written evidence. Tribunals normally do not allow more than 15 or 20 minutes for this)
Cross-examination of the Claimant’s witnesses (here, the respondent’s counsellor will have an opportunity to test the credibility of the witnesses by asking him questions. Normally, questions have to deal with consistency of the witness statements, with pleadings and other documents submitted in the arbitration)
Re-examination of the Claimant’s witnesses (here, the claimant’s counsel will have an opportunity to ask the witnesses further questions aimed at clarifying things raised during cross-examination or direct witness’s minds to important issues which have not been raised during cross-examination)
Questioning of the Respondent’s witnesses (this proceeds in the same way as the questioning of the claimant’s witnesses, save the respondents counsel and the claimant’s counsel change roles)
Questioning of experts, if any (cross-examination and re-examination of any expert witnesses)
Closing submissions (this will be the final opportunity for the council to draw the tribunal’s attention to the most important matters raised in the witness evidence and to explain how that witness evidence assists their case or damages that of their opponents. Counsel often uses this as an opportunity to summarize their case, recap the most important argument and possibly adapt their case in view what the witnesses have said)
Conclusion Of The Hearing: Are Post-Hearing Submissions Allowed And When Are The Costs Statements Due?
The hearing schedule will normally provide for time limits for all these steps. The order in which witnesses and experts are to be questioned, and for coffee/lunch and consultation breaks. At the end of the hearing, the Tribunal may order that the parties file post-hearing submissions. Although, the post-hearing submissions unnecessary. This will depend on whether the party had sufficient opportunity and time to make proper closing submissions at the final hearing. The Tribunal may also order the parties to file their statements of costs within a deadline calculated either from the conclusion of the hearing or from the date of the final award.
Statement of Costs: What it should contain?
There is a standard cost statement in English Court proceeding, the parties are usually free to choose the format in which to file cost statements in arbitration. A cost statement should contain the following information:
Names, roles and hourly rates of the individuals in the arbitration
Tasks on which they were working, and the amount of time/money spent on each task
Amounts spent on barristers
Amounts charged by the arbitration institution and the Tribunal
Other disbursements including travel, bundles, couriers, hearing room, interpreters, transcribers.
Our Arbitration Guide contains a template excel sheet which we use to prepare cost statements in our arbitrations and which you can use for your case. Parties may have an opportunity to file short submissions on costs following the publication of the award. The standard rule is that the losing party pays the winning party’s costs, but Tribunals have discretion not to award any costs at all or to reduce the winning party’s costs. They may do so for various reasons, but they will most commonly do so if:
Costs disproportionate to the amount of work
Hourly rates are too high in view of the lawyer’s experience or market rates
The overall winner has lost on important issues
The costs of the winning party by far exceeded the costs of the losing party and there is no good reason for the difference
Are you entitled to recover compensation for the time you spend on arbitration if you do no engage lawyers?
Finally, for those who want to run an arbitration, without engaging external lawyers, an important issue is whether they can insert their own time into the costs statements, assign themselves an hourly rate and at what hourly rate they can charge. Arbitration Act 1996 provides that unless the parties agree otherwise in an arbitration agreement, the Tribunal is free to award costs on such basis as it thinks fit. The guidelines of the Charted Institute of Arbitrators provide that the reasonable compensation should normally be allowed for those who represent themselves or their employers in an arbitration. Therefore, in theory, anyone running an arbitration may recover at reasonable hourly rates, whether he is or is not a lawyer. The issue is ultimately the subject to the Tribunal’s discretion and the Tribunal will always consider, whether the costs related specifically to the arbitration and were reasonable and necessary. If you want to run an arbitration without external lawyers make sure that you keep a timesheet, so that you can later explain to the Tribunal how much time you have spent and for what purpose. Keeping a timesheet is crucial if you want to recover your costs.
I hope this lecture was useful. If you require more information, please download our Arbitration Guide at www.fortiorlaw.com. Our Arbitration Guide provides more information as to how to commence the arbitration proceedings and it contains template notice of arbitration and the template response to the notice. Alternatively, get in touch with one of our lawyers at info@fortiorlaw.com.