The Rent Review Specialist
Court
Dispute Resolution
Depending on the nature of the dispute, there are various methods of resolution.
At rent review, the usual methods, a process known as referral, are arbitration and independent expert determination.
On tenancy expiry/.renewal, the usual procedure is the court, or less commonly PACT (Professional Arbitration on Court Terms). In some instances, usually involving building construction disputes, the court will encourage ADR (alternative dispute resolution), mediation, and conciliation.
Arbitration is the determination of a dispute by one or more independent and impartial third parties, rather than by the court.
Arbitrators are appointed by the parties in accordance with the terms of the arbitration agreement or in default by the court. At rent review, the arbitration agreement is usually the lease. The arbitrator may be appointed by agreement of the parties or in default by the President of the Royal Institution of Chartered Surveyors, ("RICS") or in some leases by the Law Society or the Chartered Institute of Arbitrators. The RICS provides a dispute resolution service whereby on application by one or both parties the RICS appoints a suitably qualified person, usually a chartered surveyor, as arbitrator. A fee would be charged for the service. The arbitrator's charges are a matter for the arbitrator.
Arbitrators derive their authority from the Arbitration Act 1996. In outline, the arbitrator's determination, known as an award, must lie at or between the extremes of evidence presented by the parties. Whether the strict rules of evidence apply would be a matter for the parties to decide with the agreement of the arbitrator. Depending upon in what capacity the parties themselves or their advisers are acting, the procedure involves report and/or submission, counter-submission and/or points of reply, and possibly further examination. At rent review, the procedure is generally in writing, but oral hearings may be used as well for more complex matters. The arbitrator will inspect the premises and any comparables, ask questions of the parties or possibly make his own enquiries, subject to disclosing finding to the parties and inviting comment, deliberate then subject to prior payment f his costs publish the award.
At rent review, there may be two awards: the first award on rent, the final award on costs.
The matter of costs will depend on the award and any Calderbank offers. The general rule that costs follow the event does not have to apply; it would depend upon the circumstances. The arbitrator can award costs (any agreement in the lease re the parties' liability for costs is void under the Arbitration Act 1996) including the cost of the parties' themselves. The only grounds for appeal is on a point of law, misconduct or serious irregularity.
An Independent Expert derives his authority from the lease so parties' responsibility for costs will vary depending upon the wording of the lease. Where the lease is silent then unless the parties agree to share the costs, the party that made the application is usually responsible for the whole of the Independent Expert's costs.
At rent review, the usual methods, a process known as referral, are arbitration and independent expert determination.
On tenancy expiry/.renewal, the usual procedure is the court, or less commonly PACT (Professional Arbitration on Court Terms). In some instances, usually involving building construction disputes, the court will encourage ADR (alternative dispute resolution), mediation, and conciliation.
Arbitration is the determination of a dispute by one or more independent and impartial third parties, rather than by the court.
Arbitrators are appointed by the parties in accordance with the terms of the arbitration agreement or in default by the court. At rent review, the arbitration agreement is usually the lease. The arbitrator may be appointed by agreement of the parties or in default by the President of the Royal Institution of Chartered Surveyors, ("RICS") or in some leases by the Law Society or the Chartered Institute of Arbitrators. The RICS provides a dispute resolution service whereby on application by one or both parties the RICS appoints a suitably qualified person, usually a chartered surveyor, as arbitrator. A fee would be charged for the service. The arbitrator's charges are a matter for the arbitrator.
Arbitrators derive their authority from the Arbitration Act 1996. In outline, the arbitrator's determination, known as an award, must lie at or between the extremes of evidence presented by the parties. Whether the strict rules of evidence apply would be a matter for the parties to decide with the agreement of the arbitrator. Depending upon in what capacity the parties themselves or their advisers are acting, the procedure involves report and/or submission, counter-submission and/or points of reply, and possibly further examination. At rent review, the procedure is generally in writing, but oral hearings may be used as well for more complex matters. The arbitrator will inspect the premises and any comparables, ask questions of the parties or possibly make his own enquiries, subject to disclosing finding to the parties and inviting comment, deliberate then subject to prior payment f his costs publish the award.
At rent review, there may be two awards: the first award on rent, the final award on costs.
The matter of costs will depend on the award and any Calderbank offers. The general rule that costs follow the event does not have to apply; it would depend upon the circumstances. The arbitrator can award costs (any agreement in the lease re the parties' liability for costs is void under the Arbitration Act 1996) including the cost of the parties' themselves. The only grounds for appeal is on a point of law, misconduct or serious irregularity.
An Independent Expert derives his authority from the lease so parties' responsibility for costs will vary depending upon the wording of the lease. Where the lease is silent then unless the parties agree to share the costs, the party that made the application is usually responsible for the whole of the Independent Expert's costs.
Civil Procedure Rules
Under the auspices of the Ministry of Justice, the Civil Procedure Rules ("CPR") is a procedural code, comprising rules and practice directions, used in legal proceedings and designed to enable the court to deal with cases justly at proportionate cost.
The rules and practice directions are known as Parts, for example Part 35 (Experts and Assessors), Part 36 (Offers to settle).
Under the CPR, the parties are required to help the court to further the overriding objective. Dealing with a case justly and at proportionate cost includes, so far as is practicable:
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate;
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.
The court has a duty to actively manage cases. Active case management includes:
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.
Further information re the CPR may be obtained from the Ministry of Justice
The rules and practice directions are known as Parts, for example Part 35 (Experts and Assessors), Part 36 (Offers to settle).
Under the CPR, the parties are required to help the court to further the overriding objective. Dealing with a case justly and at proportionate cost includes, so far as is practicable:
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate;
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.
The court has a duty to actively manage cases. Active case management includes:
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.
Further information re the CPR may be obtained from the Ministry of Justice