BEING AN ADVOCATE IN ARBITRATION EPISODE 6 #316
GOOD MORNING FROM LONDON
DISPUTE RESOLUTION – #316
19 APRIL 2024
BEING AN ADVOCATE – EPISODE 6
EPISODE 5 CONCLUDED AS FOLLOWS
“Your case depends on your ability to persuade the Tribunal that the Seller’s evidence is true and that it has commercial integrity and the Seller’s market information ticks all the boxes. But you have quite reasonable doubts – so what is your next step? How do you engage with your client? What do you actually say to him/her?”
There is a parallel here with a legal case I handled as a defence solicitor in the mid-1970s. I represented a London Transport bus driver who was charged with stealing a motor car. His account was that he had met a Chap in a pub. They had a drink together. The Chap offered my Client a lift – the Client accepted. Whilst in the car with the Chap driving, a Police Car gave chase for what was then an unclear reason. The Client said the Chap slammed on the brakes, exited the car and made it away. The Client was arrested and charged with TDA – Taking and Driving Away a Motor Vehicle.
If found guilty the Client would lose his job. He was married with three young children. A likeable fellow but now in difficulties. His wife would be very angry and he would find it difficult to get new employment especially if he was sent to prison.
I adopted the forensic approach to the facts when the Client came to my office to prepare for his court appearance. How did you meet the driver? What was his name? Where does he live? Can you describe his appearance? Clothes, beard, moustache, colour? And any stand out physical qualities? Any idea why the police failed to give chase to the fleeing Chap?
My questions were asked in a logical non-confrontational manner but the answers were unconvincing. I thought – but did not say – that there was no Mr Chap and that my Client was in difficulties.
I went quiet allowing the client to reflect on his answers and then, without prompting from me, he looked up and admitted there was no other person. He was the driver and he had stolen the car. He was guilty.
He asked what he should do. I explained it was a decision only he could make but I would summarise his options. He could plead guilty. I would be able to speak on his behalf, explaining how and why the offence occurred, talk about his work situation and his family circumstances and seek to persuade the magistrate to pass a non-custodial sentence.
There was an alternative course – he could decide to contest the case in court. He was unlikely to be found not guilty but the option existed. He would have to use another solicitor because I could not represent him with a Not Guilty plea because he had told me he was guilty. It was for him to choose which way to go. I could represent him and make a plea of mitigation or another solicitor could represent him and fight the case on his behalf.
I was not sitting in judgment on him but I did say that if he decided to plead Not Guilty he needed to be consistent and stick to his defence throughout the case – weak though it was. He could not tell his second lawyer that he was guilty and then ask him to fight the charge on his behalf.
I will let you know what actually happened in the TDA case in the final episode but park it in your mind as we return now to the next episode of the Arbitration case focusing on damages. Remember in the arbitration case you, the Advocate, are representing a client who you believe may be relying on a false contract to establish a lower market figure for the damages he has to pay.
GRAHAM PERRY
Episode
- AN ANXIOUS NEW ARBITRATOR
- AN ARBITRATOR STUMBLES
- ANGER MANAGEMENT
- ARBITRATION – FEES OF ARBITRATORS
- ARBITRATOR/MEDIATOR
- ARBITRATORS FEES AGAIN
- AWKWARD QUESTIONS
- BACK TO BASICS – A MATRIMONIAL MEDIATION
- DETERMINED NEUTRALITY
- DISCRETION
- DISPUTE RESOLUTION
- FAMILY TENSIONS
- FATHER’S LATE WILL
- FRAUDULENT DOCUMENTS
- GENDER ISSUES AT SCHOOL
- HOUSING AFGHANISTAN REFUGEES
- LATE APPLICATION TO SUBMIT NEW EVIDENCE
- LENGTHY ORAL SUBMISSIONS
- MEDIATION - ANGER MANAGEMENT
- MEDIATION – DENTISTS DISAGREE
- NEIGHBOUR DISPUTES + SECOND HOMES
- NEW WORLD – NEW WORDS
- POST HEARING EVALUATION
- THE ARBITRATOR BECOMES A MEDIATOR
- THE BACKGROUND
- THE BIGGEST SOURCE OF MEDIATION
- THE CORE QUALITY
- THE DOMINATING SOLICITOR
- THE EXPERT WITNESS
- THE FAMILY PROPERTY DISPUTE
- THE FLEXIBILITY OF MEDIATION
- THE MEDIATORS’ SKILLS
- THE OVER-ACTIVE PARTY LAWYER
- THE STORY SO FAR
- TO INTERVENE OR NOT TO INTERVENE
- TRADE ARBITRATORS + LAWYER ARBITRATORS
- UKRAINIAN REFUGEES
- WORDS MATTER
- WRITERS’ BLOCK
Graham Perry On Dispute Resolution
This website serves a number of purposes.
First, it enables me to bring my skills and experience to a wider audience. I remain active as an arbitrator, a mediator, a party advacate and this website tells you about me.
Second, it fulfils a long-held desire to promote a forum for discussion of dispute resolution issues. I have for 20 years been the Chair of the Arbitration Lunch Club together with the Hon Secretary, David Barnett. Pre-Covid we would meet three times a year for a Lunch sponsored by a City of London Law Firm and at the Lunches we would hold a discussion of two topical dispute resolution issues sometimes with the participation of Judges Woolf, Rix, Coleman and Sumption. Covid has triggered the Club to go Zoom-wide with participants drawn from around the world.
Third, there is a current need for a lively inter-active website that, on a daily basis, enables dispute resolvers from around the world to participate in discussion, debate, and disagreement on issues affecting the conduct and development of arbitration and mediation. Contributions can be academic as well as practical; studious as well as flippant; argumentative as well as collegiate.
Why not read my articles on dispute resolution.?
Should you need any advice or require my services contact me today!
Goals
My goal is to make the website lively and encouraging to arbitrators and mediators; to put restraint and self-consciousness to one side and play their part in making dispute resolution lively, informative and progressive. We are always moving forward. Elsewhere on this site, you will find a page which tells you how to become involved.
SOMETHING UNUSUAL
Here’s an interesting situation.
You are a party-appointed arbitrator in a Tribunal of 3. The parties are buying and selling soya beans. They have a falling out over the terms of a Trade Agreement.
Sellers sues Buyer. The dispute is commercial and relates to the minimum quantities in monthly shipments over a 12 month period. A normal commercial dispute.
But then fireworks and Buyers send strongly worded letters to public bodies alleging that Sellers have committed fraud. Sellers argue that they have been libelled and add a claim for damages for libel to the claim about minimum quantities.
Does the Tribunal have to address the libel claim? Two arguments;-
1. The arbitrators are commercial people appointed for their commercial knowledge. They know nothing about libel. They refuse to adjudge the libel claim.
2. They have to handle the libel claim. It is a dispute. The parties want the arbitrators to decide the claim. The arbitrators have no choice. Deal with it.
This issue went to the courts and the Commercial Court made a judgment. But let me throw this open for comment. How do you think the arbitrators should act. Let me hear from you and then I will let you know what the Court said.
Graham Perry.
A Family Mediation
You are a family mediator. You are approached jointly by a husband and wife for assistance in a matrimonial break up. There are two children of the marriage – a boy aged 12 and a girl aged 14. They are both represented by separate solicitors.
The mediation proceeds. A mediation agreement is signed. Letters are exchanged. Meetings take place. You become aware that there are personal issues between the parents concerning their relationship. They do not concern you as such because the divorce is proceeding and these personal issues do not impinge upon the issues in dispute which are to do with financial arrangements, holiday arrangements and involvement with schools. In due course, these matters are agreed and recorded in the Final Agreement which is signed by the husband, the wife and yourself. Your fee is paid.
Three years later your wife has passed away through illness and you are alone without children. In a social setting, you happen to meet up with the wife and a relationship commences. Out of the blue, you receive a letter from the former husband’s solicitors alleging non-disclosure by you of the relationship which, on their information, was current at the time of the mediation. Further, the letter refers to a lack of impartiality on your part and material non-disclosure of the relationship and indicates a claim for damages will follow.
What do you do?
About Me
Graham Perry qualified as a solicitor in 1973 after graduating from Churchill College, Cambridge where he studied History and Economics. He practised for nine years and then made a major career change to become Managing Director, of London Export, a UK company formed in 1953 to concentrate on trade and business with the Peoples’ Republic of China. Since 1990 Graham has been an international dispute resolver of commercial problems resolving commercial disputes.
Experienced Dispute Resolver
Commenced my career as a dispute resolver combining my legal skills and commercial experience. I am an active arbitrator and trade representative in London with the Grain and Feed Trade Association (GAFTA), the Federation of Oils, Seeds and Fats (FOSFA), the London Metal Exchange (LME) and, occasionally, with the Sugar Association. I have a growing practice in shipping disputes and sit on the arbitration committee of the LME and FOSFA. I am a frequent lecturer and writer on commodity arbitration and mediation, giving lectures in China, India, Ivory Coast, Bhutan and the United Kingdom. I am an accredited CEDR mediator.