There was an even larger than usual turnout at this week's
quarterly meeting of the Forum of Family Arbitrators, a group in which all IFLA
accredited arbitrators are invited to participate. No doubt this was because
immediately on from that followed what proved to be a lively joint meeting organised
by IFLA and the London Branch of the Chartered Institute of Arbitrators. As you
may have gathered from the real-time tweets from front-line commentator Andrzej Bojarski, those present were treated to spirited stimulating and informative
addresses on aspects of commercial and family financial arbitrations from the
lofty peaks of Eder and Mostyn JJ, and to a well-rounded summary of where
family arbitration is at from Grant Howell of Charles Russell Speechlys (our generous
hosts for the evening), the Chair of the FFA.
Unsurprisingly Mostyn J, firmly mounted on his current
hobbyhorse, took the opportunity to tilt against hourly rates. See his most
recent decision (there have been others since then but you know what I mean) in J v J  EWHC 3654 (Fam). His campaign in support of fixed fees and cost caps definitely
has legs and seems destined to run and run, and certainly its target is no
merely quixotic windmill. A wind of change does seem to be stirring the sails as
more and more practitioners offer fixed fee arrangements as an option in these
cases. It may be that in regard to this the judge's blast that 'although the mantra "something must be
done" is repeated time and again, nothing ever is' will be blown off
course by market forces rather than by judicial gusts.
I would like to take
up for discussion one aspect of his suggestions, at , that 'a litigant should be able to demand a fixed
price for each of the three phases of an ancillary relief case namely (1) Form
A to First Appointment, (2) First Appointment to FDR and (3) FDR to trial.'
constructive comment on the practicalities of this proposal has already been published by Mark Hands of Irwin Mitchell,
however in a distinct situation from family lawyers representing their client.
It is unthinkable that an arbitration should proceed on the basis of staged
all-in fees successively fixed for each segment of a financial remedies
dispute. That would work for lawyers in a representative capacity who could
make allowance for experience to that point: the case might meanwhile have
become predictably more complex or indeed less so. But no arbitrator (if indeed
any client) would embark on the process if it might have to be abandoned
because at some point down the line the arbitrator and the parties (or indeed
even just one of them) fell out about the appropriate fee for the next stage.
So fixed fees for arbitrators
could surely only work on the basis that the fee encompassed the entire process
through to delivery of the award. Some refinements might be written in: the fee
quoted might stipulate that there should be only one PD 27A compliant bundle,
or not more than a stipulated number; that it would include allowance for up to
a specified number of interlocutory applications only; that the final hearing
(if the arbitration in question was not paper-only) should not exceed X days,
including final submissions; and so on.
From which it follows that for a fair fixed fee to be negotiated the need must be understood and accepted by the parties, and their lawyers, that they must be open and transparent. Thus at the pre-commitment stage they need fully to inform arbitrators whom they approach for a quote not only about the general shape and scope of the issues for determination, but also about any specific particularities of the case which impact on complexity and therefore on the degree of time and skill which the arbitrator will be required to invest.
In this connection
can I draw attention to a suggested pre-engagement questionnaire, recently revamped. As was its
predecessor, it is a work in progress and contributions and comment would be
I can though see how
the question 'approximately
how many pages do you expect will be required in the final hearing bundles for
the arbitrator to read?' might be refined in the light of J v J
to something like: 'Do the parties agree to limit documentation for the final hearing to a
single-no-more-than-350-page PD-27A-compliant bundle; and if not how many
bundles does each party suggest by way of maximum?' That would seem to meet
the point made at  where Mostyn J remarked 'if parties wish to have a trial with numerous bundles
then it is open to them to enter into an arbitration agreement which
specifically allows for that.' Although some may claim to detect irony
in this observation I feel confident that there is no element of
tongue-in-cheek about it. Definitely not a wind-up, then! The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.