arbitration

James Flynn FRICS has long experience in the value and condition of commercial and residential property.

We accept appointments as arbitrators or as independent experts.

We may be appointed as the Arbitrator or Independent Expert agreed by the parties in dispute or act as an Expert Witness/Advocate representing one of the parties.

Should the Surveyor have acted for one of the parties in the past or should there be a connection which causes a conflict of interest then the surveyor will not accept the appointment.

We deal with disputes as to capital value and rental value of residential and commercial property, boundary disputes, building defects, dilapidations, landlord and tenant disputes, damage to property, restrictive covenants, party walls, rent reviews, lease renewals, lease extensions, freehold purchase and surveyor negligence.

What is the difference between an Arbitrator and an Independent Expert?

An Arbitrator determines a dispute only using the evidence submitted by the parties.

An Independent Expert determines the dispute using both the evidence submitted and his/her own expert knowledge.  He/she may seek further evidence in addition to that submitted by the parties.

What is the procedure?

The Parties must first agree, in writing, to submit their dispute to an Arbitrator or Independent Expert for settlement and accept that his or her determination is final.  Such agreement may occur after the dispute has arisen.  In many cases the dispute is governed by the terms of a contract between the Parties which states that any dispute shall be settled by Arbitration.

Following appointment the Arbitrator sends directions to the disputing parties as to how the matter should proceed.

Typically those directions will stipulate a date when both parties should submit their arguments and reasons for their side of the dispute in writing and in duplicate.  This should include documents and other evidence which may prove their assertions in the dispute.

The Arbitrator passes one copy of each submission to the opposing party stipulating a date when counter arguments should be submitted.  Again, a copy of each document is passed to the opposing party with a further period of time to allow for objections to any of the information which may have been incorrectly submitted, but no further submissions are allowed.

Only at this point will the Arbitrator read the documents.  In many cases relating to property it is necessary for the Arbitrator to inspect the property and, sometimes, other properties where the parties have referred to them in the evidence submitted.  The Arbitrator does not seek further evidence.  It is, therefore, of paramount importance that all evidence of relevance to the case is submitted.  The parties may employ a surveyor or solicitor to prepare and submit evidence on their behalf.

The Arbitrator shall make determinations on matters of law where this relates to the dispute.  He or she may seek legal advice where the matter is outside his or her knowledge.  The determination is communicated to the parties.  The determination may be 'reasoned' where reasons for the decision are given or 'unreasoned' where only the determination is communicated.  In most cases the determination names the parties, states the terms of reference, summarises the undisputed facts, summarises the disputed facts and the partys’ contentions, states the findings on the disputed facts and the reasons, and awards costs and interest if applicable.  The determination ends with a clear statement of what has been determined.

The parties may submit evidence of costs and reasons why they believe that their costs should be paid by the opposing party within their main submission.  This is often done following the Arbitrator’s decision in the main dispute.

Details of negotiations prior to referring the matter to the Arbitrator may not be revealed.  This allows the parties to attempt to settle a matter without prejudicing in the case which they submit to the Arbitrator.

The parties may make an offer to settle in writing but “without prejudice save as to costs”.  This means that the offer may be revealed to the Arbitrator after his or her determination has been published and when the question of costs is being considered.

Back to Top

How are charges calculated?

Our fees are calculated at an hourly rate.  The fee depends upon the amount of time expended.

Less time is expended if inspection of a property is not required, if the parties agree many of the facts in advance, if a reasoned award is not required and if documents submitted are kept to the minimum of those which are relevant to the dispute.

Costs are minimised if the parties co-operate to ask the Arbitrator to determine only those matters which are the essence of the dispute.

How are determinations made?

A determination is made by considering the evidence submitted, the contract between the parties and the law applicable.  The determination is made under the provision of the Arbitration Act 1996.

The advantages of arbitration

The main advantages are speed and much reduced costs compared with litigation through the courts.  The arbitrator is an expert in the field of the disputed matters.

When is payment made?

An initial fee of £480.00 plus VAT is payable when the Arbitrator/Expert is appointed.  Our final invoice is issued prior to the determination being published. We shall inform each party that the determination is available.   Either party may pay the fees or they may decide to each pay part of the fees.  A copy of the determination is then published to each of the parties.

Can costs be awarded?

The Arbitration Acts allow an Arbitrator to award costs but the parties may agree to override this power.  The contract between the parties may contain a clause stipulating that costs be divided equally.

In the absence of such an agreement it is common for the party which loses the reference to be responsible for the whole of the costs.  This follows the procedure adopted by the courts.  In claims for sums in excess of £5,000 the costs of legal representation may be awarded.

Costs may be awarded as part of the main determination but may be determined separately.

Back to Top

Is Interest awarded?

In most cases yes, at the rate stipulated within the contract.  If no rate is stipulated then the rate used by the courts is awarded.

Can a party appeal against the determination?

Only limited rights of appeal to the High Court relating to areas of law or procedural irregularity are available.

James Flynn Chartered Surveyors?

We are an independent firm of chartered surveyors and have been advising clients on all aspects of property value and condition since 1980 from our offices in London, Surrey, Hampshire, Sussex and Kent.  We mainly cover the London and South East region but travel further afield when this is requested.

Back to Top

To contact us please select from the appropriate area link below:

London  | Surrey | Sussex | Hampshire | Kent

 

 

Print the content of this page