Professional Ethics pre-reading (to include student materials for the 1st small group session)

KEY POINTS ON OTHER ADJUDICATIVE PROCESSES

• 
  Ombudsmen
  
• 
  Expert determination
  
• 
  Construction Industry Adjudication
  
• 
  Enforcement
  

Note references to the textbook have been included to assist you when revisiting these key points in the Autumn term

1. 
   What is an ombudsmen scheme? – general
   

An ombudsman scheme is essentially a complaints handling process that is independent of the organisation it is overseeing.

The function of an ombudsman has traditionally been associated with public/state functions (e.g. Parliament, NHS, Local Government) and has been created by statute; but the term is now widely used within the grievance/complaint procedures of private/commercial/trade organisations. However, please note there can be significant differences in the approach and decision making of public sector ombudsmen compared to those in the private sector.
A referral to an ombudsman would normally only occur once a complaint/grievance had been ‘aired’ through normal channels within the organisation that is the subject of the complaint/grievance. If the complainant remains dissatisfied with the way that complaint/grievance was handled by the organisation and/or the outcome they can then approach the ‘Ombudsman’.
Whilst an ombudsman scheme is independent, it is often funded or supported by the organisation it regulates. However, there is an Ombudsman Association which provides guidance on good practice.
Review in more detail the goals and principles of good practice for an ombudsman scheme set out at 21.21-21.22.
The benefit of an ombudsman scheme is that is provides a neutral decision without the expense or stress of litigation and most organisations will accept and implement the result, if not it can be useful in any subsequent litigation (if the scheme is non-binding).

2. 
   When can you use an ombudsmen scheme?
   

An ombudsman comments on the decision making process of an organisation and will require a person to exhaust the internal complaints procedure before a referral can be made – in case the complaint can be resolved internally. A complaint is made via letter or a complaint form and the process thereafter will vary;

• 
  Documents only
  
• 
  Telephone contact
  
• 
  Hearing
  

The different types of procedure and how the ombudsman will conduct an investigation is set out at 21.22 - 21.23.

3. 
   On what grounds does an ombudsman make a decision?
   

It depends on the scheme – see 21.25.

• 
  Financial service and legal ombudsman – what it fair and reasonable in the circumstances.
  
• 
  Public sector – was there maladministration that resulted in injustice,
  
  • 
    There are a number of factors that amount to maladministration – see 21.25.
    

4. 
   Remedy and is an ombudsman’s decision binding?
   

It depends on the scheme – see the list of schemes that are binding and non-binding at 21.27 - 21.28.

The remedy may vary from an adjudication on the dispute i.e. whether the organisation that is the subject of the complaint acted appropriately or not, or compensation.

• 
  Compensation – generally in private sectors schemes but can include interest and fees, can be a cap (Financial Ombudsman = £150, 000)
  
• 
  Correcting errors - e.g. Legal Services Ombudsman
  
• 
  Apology
  
• 
  Public sectors schemes – review of the decision or act, possibly a different decision
  

5. 
   When can you use expert determination
   

Expert determination can be binding or non-binding as a matter of choice and contract between the parties. This decision made be made when the dispute arises as part of the ADR process or it may have been decided beforehand as part of the terms on which the parties decide to contract. It is a flexible process that could be the only ADR needed or it can be used as part of a mediation or negotiation where there are a number of issues but the parties are getting stuck on technical issues, referring out for expert determination can break that deadlock.

The parties should consider the nature of the dispute to see if it best suited to expert determination and who is the most appropriate expert – see further at 24.07 and 24.19 – 21.
The courts will support the use of expert determination and may stay litigation to allow this to happen or can enforce contract clauses requiring expert determination to take place where there is a dispute.
What factors will the court consider when deciding whether to stay court proceedings? – see 24.14.

6. 
   The advantages and disadvantages of expert determination
   

Expert determination is simply another form of third party adjudication. However, the adjudicator is, as the title implies, an ‘expert’, chosen from a particular field which means the parties accept the expert is qualified to appropriately assess and decide the technical nature of the dispute.

The key point to consider here is the nature if the dispute and if it is suited to expert determination before weighing this process against the other forms of ADR such as negotiation, mediation and arbitration. Many of the advantages and disadvantages will be similar in terms of speed, confidentiality, some choice over the process and what the expert sees etc. but, if it is binding determination then that autonomy is handed over to the expert and if it is non-binding, is it useful/worth the cost? – make sure you are familiar with the detailed lists of differences, advantages and disadvantages at 24.16 - 24.18 and 24.67.

7. 
   The process of expert determination
   

As with the referral this may be determined in advance or once the dispute has arisen, the latter situation perhaps giving the parties more choice to tailor procedure and expert selection to the dispute.

Issues to consider – see further at 24.22 - 24.28

• 
  Documents only or a hearing? - typical procedure is an agreed bundle of documents with written submission to the expert, who then decides
  
• 
  Will there be statements of case?
  
• 
  What documents should the expert see?
  
• 
  If there is a hearing, what is the procedure – examination of witnesses or submission only?
  
• 
  The rules of natural justice apply
  
• 
  The court may get involved to force the parties to follow procedure that has been agreed where that agreement breaks down or to produce documents that it has been agreed will be produced.
  
• 
  Confidential information may be provided to the expert only but the expert needs to refer to the fact s/he has been given the information on this basis in the reasons for the decision are clear.
  

8. 
   The decision of the expert
   

Binding, if this has been agreed and can therefore be enforced in the court. The parties can agree if reasons need to be given for the decision or not (probably a good idea to have reasons, especially if there is a possibility of a challenge to the expert determination on the basis of manifest error). The reasons should state the basis for the conclusions on the issues the expert was asked to determine and the courts can enforce the requirement to give reasons where this is a contractual obligation.

Challenging the decision

There are a number of grounds on which the expert’s decision can be challenged – see further 24.36-24.39.

In essence they relate to going outside the dispute referred, an error of law or manifest error (= an obvious error beyond contradiction e.g. wrong information provided to the expert on which the decision was based). The party seeking to challenge the award will need to commence a Part 8 claim seeking to set aside the expert’s decision and perhaps asking the court to make the determination or direct a new expert decide the issue.

9. 
   When can you use the Construction Industry Adjudication Scheme?
   

This is a particular form of adjudication that is created by statute. It is an interim adjudication and aims to provide a “pay now argue later” approach to ensure that larger construction projects are not brought to a halt by disputes but allows the parties to later challenge the decision by litigation, arbitration or agreement.

The qualifying criteria set out at 25.05 must be met and the scheme does not apply to domestic construction contracts.

• 
  There needs to be a commercial construction contract
  
• 
  It has to have provisions that allow a referral to be made, but if it does not these will be implied by the Housing Grants, Construction and Regeneration Act 1996.
  
• 
  The contract does not have to be in writing
  
• 
  There needs to be a dispute, and this has to relate to the underlying construction contract.
  

What amounts to a construction contract is considered in more detail at 25.07 and what is a dispute at, 25.09 - 25.10. The latter issue is important because the dispute needs to be clear and ideally only one issue should be in dispute. If the dispute is confined to a single issue then the process if likely to work more effectively and achieve the usual benefit of speed and clarity but if there are multiple issues, keeping to the very tight time table for the interim adjudication can be difficult.

10. 
    The Adjudication Process
    

Express and Default provisions

Construction contracts and required to contain express clauses permitting adjudication and sets out the content of those terms – see 25.12 but in the absence of such terms, the Act contains default provision allowing for the referral to the scheme.

See the flow chart at Figure 25.1 and the table below which summarises the process.

The Adjudication Process
Claim by letter Dispute by responding party No response in reasonable time	Establishment of a “dispute” within the meaning of s.108 (2) of the Housing Grants, Construction and Regeneration Act 1996. (HGCRA)
Notice of Adjudication Appointment of Adjudicator 7 days from notice of adjudication Referral Notice and supporting documents to the adjudicator 7 days from Notice of Adjudication Adjudicator sets out timetable for the adjudication	-Notice of Adjudication sent to all parties to the contract – to refer a dispute arising out of a construction contract to adjudication; sets out details of parties, dispute and the nature of relief claimed -May be mentioned in the contract or appointed in accordance with the machinery in the contract -In effect, the formal statement of case which sets out (1 the circumstances giving rise to the dispute; (2) evidence in support of the case; (3) there may not be a hearing and so the documents should be explained -May discuss the procedure by phone with the parties
Response to Referral Notice Responding party’s supporting documents 7 to 14 days from the referral notice Referring party’s reply (if time)	-Often takes the form of a Points of Response and should be supported by relevant documentary evidence
Adjudicator considers and requests further information? Adjudicator asks questions Adjudicator seeks documents Perhaps a site visit is made?	-May be put to a party / witness – part of the fact gathering process -Which may be reasonably required – all documents to be shown to all parties (n.b. all materials remain confidential except to the extent necessary for purposes in connection with the adjudication) -adjudicator can go alone or with parties
Hearing OR No Hearing	Parties may be legally represented Clarification might be sought from telephone conference calls – emails etc. .
Decision 28 days from referral notice (can be extended to 42 days) Communicate decision to parties	-Must be made in accordance with the contractual terms and law of the contract -Must be impartial -Must be a reasoned decision (unless parties agree otherwise) -Must be communicated a.s.a.p.
Binding (interim) effect of decision Until litigation, arbitration or agreement Enforceable through the courts	-Many parties agree to abide by adjudicator’s decision to avoid incurring further legal costs -Through the summary judgment process

11. 
    Enforcement
    

Usually, where the ADR method chosen results in a settlement the parties want that settlement to be binding. It is it possible for the ADR process to be non-binding e.g. the parties may want an indication on a particular issue that they take into a negotiation or mediation. Where an agreement is binding, it will be a contract and can be enforced by suing on the agreement. As you have considered in the earlier part of the course, where court proceedings are underway a consent order or Tomlin order is needed to finish off the litigation.

Expert determination

If binding determination is chosen then the decision has contractual force, but otherwise it cannot be directly enforced and the dispute will need to be litigated. See further 24.62 - 63.

Ombudsman

These decisions may or may not be binding – it depends on the scheme. If it is binding it may prevent further litigation on the complaint but, if it is non-binding litigation can still be brought. An example of a binding ombudsman scheme is the that of the Financial Service Ombudsman and if there is a need to be enforced, Part 8 proceedings should be commenced and then an application made seeking an order that the Ombudsman’s decision have the effect of a court order, that then allows it to be enforced.

Arbitration awards

In relation to domestic arbitration, a binding award will be made that can be enforced in the High Court or under s 66 of the Arbitration Act 1996. Permission is needed to enforce the award and once this is given, the judgment debt interest rate of 8% applies.

Construction Industry Adjudication

These awards should in theory no need enforcement because the scheme operates on the basis of “pay now, argue later” and the parties can continue the dispute despite the award. However, if there is a need to enforce adjudication award this is done by suing on the award and then entering default or summary judgment so that the normal civil enforcement methods can they be used to secure payment.

Welcome to the Bristol Law School and the Bar Professional Training Programme
Get ahead with legal research methods and become the best barrister: database self-certification.

In order to be the best barrister you need to be the best at finding legal information. Developing excellent research skills takes practice. There are several resources that can help you to start this process early, building on your previous experience, and that can help to demonstrate your expertise to potential employers, giving you the edge over your competitors.

Take Action: In preparation for your BPTC course, we strongly encourage you to undertake the basic self-certification tests for LexisLibrary, Westlaw and JustCite.

For those of you who have already completed the basic self-certification, you can further hone and evidence your research skills by means of:

• 
  LexisLibrary Advanced Test
  
• 
  Westlaw Advanced Test
  

You will need your UWE student username and password in order to access UWE’s subscription legal databases and to register and take the tests themselves.  If you fail the test, there is the option to try again to obtain that all important certificate (and no judgements are made!).

This is your opportunity to show your expertise in using the everyday research tools of barristers. If you feel confident that’s great, but if you feel you have a little further to go then you can take the tests after working through some of the self-help materials mentioned below, many of which do not require login details.
Training videos

No login is required for the training videos. You can watch the videos to refresh/enhance your research skills prior to taking the tests. 

• 
  LexisLibrary (scroll down past the PDF guidance to ‘Video Tips’)
  
• 
  Westlaw (see Part 1-4 of their e-learning module under the ‘Westlaw UK Basic Certification’ heading)
  
• 
  JustCite (Training videos are under ‘Resources’ on the right hand side of the home page)
  

Online tutorials

UWE’s core Building Legal Information Skills (BLIS) tutorials (no login required) provide a basic grounding in legal research skills, primarily for our LLB students. However, you may find this resource useful if you wish to consolidate your legal research skills and to identify and strengthen any areas of weakness.

Peer support: student associates

At UWE you also have the support of LexisLibrary and Westlaw Student Associates, current law students who are highly trained (by LexisLibrary and Westlaw) in the use of those databases. Contact them to take advantage of drop-in sessions for students and staff who require instruction in the use of the databases.

Legal Research Methods sessions on the BPTC

As part of the BPTC course you will have two dedicated ‘Legal Research Methods’ sessions.  These will focus on practical legal research skills such as finding cases, using Halsbury’s Laws, finding personal injury information, and using online practitioner texts, such as the White Book, Blackstone’s Criminal Practice, and Chitty on Contract.  Both of these sessions will be very ‘hands on’, with exercises to work through and plenty of opportunity for students to engage with the online and print resources in a supportive environment.  These sessions aim to give individuals the confidence they need to continue to develop their skills.  Honing and maintaining these legal research skills in the changing electronic environment can be the work of a life-time!

You could even postpone the tests until after your first legal research methods sessions, however, attempting the tests before you start will help you identify gaps in your experience and help you to get the most out of the legal research methods workshops.
Do contact us if you need any further support or guidance.  We look forward to meeting you!

The FBL Librarians

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