Special Courts

Question 1

Statute/Section: Arbitration costs are in 3 categories: (a) Arbitrator fees/expenses, (b) Costs of Arbitral Institution, (c) Costs of the Parties; (including costs of or incidental to proceedings to determine recoverable costs)

Answer 1

Section 59 of Arbitration Act 1996

Question 2

Statute/Section: An agreement which has the effect that a party is to pay the whole or part of the costs of the arbitration in any event is only valid if made after the dispute in question has arisen.

Answer 2

Section 60 of Arbitration Act 1996

Question 3

Statute/Section: Arbitrator can allocate costs of arbitration between the parties; unless agreed otherwise costs will follow the event

Answer 3

Section 61 of Arbitration Act 1996

Question 4

Statute/Section: Any award in respect of costs extends only to such costs as are reasonable and recoverable

Answer 4

Section 62 of Arbitration Act 1996

Question 5

Statute/Section: Parties may agree what costs of arbitration are recoverable, if not agreed Tribunal may determine costs as it thinks fit, any party may apply to Court

Answer 5

Section 63 of Arbitration Act 1996

Question 6

Statute/Section: Reasonable fees and expenses of the Arbitrator may be agreed by the parties/arbitrator, may apply to the Court for determination

Answer 6

Section 64 of Arbitration Act 1996

Question 7

Statute/Section: Tribunal may limit recoverable costs of the arbitration

Answer 7

Section 65 of the Arbitration Act 1996

Question 8

Case: If judge finds award is legally invalid, may refuse leave to enforce it

Answer 8

Re Stone v Hastie 1903

Question 9

Case: If an arbitration award is made and not challenged in Court in a timely fashion, it should be entered as a judgement and given effect accordingly

Answer 9

Middlemiss v Hartlepool Corporation 1972

Question 10

General rule: To be enforceable, an Arbitrators Order for costs must…. (3 items)

Answer 10

(a) Be contained in an award dealing with substantive issues or in one or more awards dealing with costs (b) Be for a quantified sum, and (c) Must comply with Section 66 of the Arbitration Act 1996

Question 11

Statute/Section: May challenge that the tribunal lacks substantive jurisdiction

Answer 11

Section 67 of the Arbitration Act 1996

Question 12

Statute/Section: May challenge if serious irregularities (failing to follow agreed procedure, exceeding powers, ambiguity of award effect)

Answer 12

Section 68 of the Arbitration Act 1996

Question 13

Statute/Section: May appeal on a point of law (requires agreement of all parties or leave of the Court)

Answer 13

Section 69 of the Arbitration Act 1996

Question 14

Statute/Section: Court can order Security for Costs and payment of full amount before allowing appeal

Answer 14

Section 70 of the Arbitration Act 1996

Question 15

Case: If substantive award overturned, costs award ceases to have effect

Answer 15

Martin v Harris 2019

Question 16

General rule: Name two First Tier Tribunals which cannot make Costs Orders

Answer 16

(a) Social Entitlement Chamber, (b) War Pensions and Armed Forces Compensation Chamber

Question 17

Statute/Section: Costs are at the discretion of the Tribunal, full power to determine by whom and to what extent costs are paid, subject to Tribunal Procedure Rules

Answer 17

Section 29 of Tribunals Courts and Enforcement Act 2007

Question 18

General Rule: Upper Tribunal may make a costs order __________________, limited by ________________

Answer 18

Upon appeal from another tribunal, limited to the tribunal’s own powers (per their Tribunal Procedure Rules of 2008)

Question 19

Statute/Section: Tribunals can make a wasted costs order, wasted costs defined as a result of improper, unreasonable or negligent acts

Answer 19

Section 29 of Tribunals and Court Enforcement Act 2007

Question 20

Case: Wasted Costs are discretionary for unjustifiable conduct

Answer 20

Harley v McDonald 2001

Question 21

Case: Mere mistakes do not justify wasted costs

Answer 21

Ridehalgh v Horsefield 1994

Question 22

Case: Wasted Costs Orders not to be used as a threat

Answer 22

Orchard v SE Electricity 1987

Question 23

Case: A party must be alerted to the possibility of a Wasted Costs Order and given appropriate time to respond

Answer 23

Cancino 2015

Question 24

Case: Wasted costs requires a causal link between conduct and the costs incurred

Answer 24

Awuah and others 2017

Question 25

Case: An award for indemnity costs is not limited to where conduct is disapproved, consider each case on own facts, something in conduct out of the norm may justify indemnity costs

Answer 25

Noorani v Calver 2009

Question 26

Case: Conduct must be unreasonable to a high degree, not merely “wrong” or “misguided in hindsight”

Answer 26

Kiam v MGN Limited 2002

Question 27

Case: Pursuit of a weak claim is not a reason for indemnity costs, but pursuit of a hopeless claim may be a reason

Answer 27

Wates Construction v HGP Green Tree 2006