The Faculty of Advocates is embracing the concept of arbitration as an alternative to traditional litigation, writes Angela Grahame QC
Calling all Personal Injury Solicitors! Are your clients becoming more and more frustrated by the delays and increased costs of taking a case to court?
Are you tired of waiting three weeks to have a motion heard in the All Scotland Personal Injury Sheriff Court? Is it becoming harder every year to re-read those case papers, months after you conducted the first day of that proof? Are your clients frustrated at having to wait two years in the Court of Session for a proof diet longer than four days? Does it make them angry when they are told on the first morning to “go away”. because there is no judge to hear the case?
Is the answer to all those questions an emphatic “yes, but what can we do about it”? Well, the Faculty of Advocates is now taking steps to provide a viable alternative.
Under the leadership of Gordon Jackson QC, the Dean of Faculty and myself as Vice Dean, the Faculty is introducing a brand new Arbitration Scheme, starting with Personal Injury. From spring 2017, you should be able to advise your client about this option, and there are considerable advantages to choosing Arbitration rather than litigation.
Arbitration is a creature of consent. That means you retain more control than ever before, about how the dispute is resolved. You have the power to agree to go to Arbitration; to decide who is appointed as the Arbitrator; to decide what fees are paid. Do you want the entire Arbitration concluded within a fixed period? Do you want the decision issued within 40 days of the conclusion of evidence? That is all feasible with Arbitration.
Members of Faculty can provide the specialist assistance that ensures a great outcome for your client. Equally, the Faculty is in an excellent position to conduct Arbitrations, both to represent parties as Counsel and to provide Arbitrators. You may choose your own Arbitrator or the Faculty can appoint one for you.
The system will be paperless. There will be 24-hour access to documents, run online for the convenience of parties. Styles will also be available to those wishing to set up an Arbitration, along with the other documentation you may need. There will also be “tribunal support” available for Arbitrators, again with the Tribunal going direct to counsel, if required.
The good news is it will no longer take three weeks to have a motion heard; if you want a meeting with your Arbitrator you fix it; if you want to do everything by e-mail, you can; no more hanging around waiting to be allocated; no more trips to the Keeper asking if they have a judge; no more waiting in court behind 15 other cases.
There may be disadvantages to some: The rights of appeal are limited, so if you want to take your case to the Supreme Court, then Arbitration may not be your preferred first option. You may want to go straight to the Outer House and appeal from there, but those cases are rare.
There may be concerns about compelling non-parties, eg where there is a potential third party or a need for a specification of documents. For recovery of documents, there are always other options: the assistance of the court can be invoked under the Arbitration (Scotland) Act 2010 Schedule 1; along with the use of mandates, FOI requests and section 1 petitions, if necessary.
Both pursuers’ firms and insurers are interested in using Arbitration in the future. Clyde & Co are promoting this to their clients as an option from 2017. If you are interested in getting involved, you could help us create and mould this Scheme so that it works to everyone’s advantage. There is no doubt that the Faculty wants this to work for the benefit of you and your clients. We will run two pilot cases next year.
Overall PI Arbitration is confidential, flexible, faster and bespoke and it’s coming to a case near you in 2017.
For other types of dispute, watch this space. PI Arbitration is just the start of the Faculty’s plans to develop and promote Arbitration as an alternative to traditional litigation.
Angela Grahame QC is Vice-Dean of the Faculty of Advocates