2020/NO.18 - We are using the word 'Tribunal' in its general sense to describe any third party referral namely Arbitration, Independent Expert, PIRRS and Independent Assessor under the Pubs Code. A ‘slip’ is a mathematical or influential clerical error which can happen to the best of us.
The related case law, and there is quite a pile, all relates to the Arbitration Act 1996 and the mechanism for either clarification or correction of an Award (section 57) or the arbitral process of appeal under section70 (3) both being linked to the 28 day window that applies. The most recent case of interest is - Daewoo Shipbuilding & Marine Engineering Company Limited-v- Songa Offshore Endurance Ltd  EWHC 538.
Not to bore you with the inner logic of this case but the definition of the distinction between the two segments of the Arbitration Act 1996 was greatly clarified by Mr Justice Bryan. Section 57 allows for the correction or clarification of an Award and universally applies to all arbitration procedures. We will deal with the right to appeal an Arbitration Award in a later publication.
BUT the Arbitration Act has no standing or influence over all the other Tribunals mentioned. Which brings us to the heart of this advice which is the content of the initial Directions letter to both parties. This applies to all the other forms of referral as mentioned above. Both parties are always invited to approve the Directions at the beginning of the referral. Generally these are bog-standard and computer-generated, running to probably three pages and having anything up to thirty or so paragraphs, having been refined over many years, Not all directions are the same and their content can vary enormously. Check the content of the Directions letter with great care. If a ‘slip’ clause is already included then no worries.
However, if no such clause is present and to allow for the opportunity of correction we would advise/insist that the following clause is automatically included in all letters of Direction.
“Subsequent to the issuing of my Directions, should there be discovered a clerical, mathematical or similar error, by way of a ‘slip’, upon request from one or both of the parties I will amend that Determination and issue a revised one incorporating and rectifying the matter”
So why is this so important? Under the PIRRS regulation 29 it states that “The parties on receipt of the Independent Expert’s Rental Determination are committed to the rental which has been determined”. But if the ‘slip’ clause is included in the Directions it confirms the agreement of both parties that any error can be looked at BEFORE the Determination is finalised. The ‘rules of engagement’ binding between the parties are and must be the agreed letter of Directions.
The same logic of ‘natural justice’ should apply to the Pubs Code regulation 37 (10) (a). This governs where either party does not consider that the Independent Assessor determination represents the market rent. That could have been the result of a ‘slip’. Rather than charging off to the Pubs Code Adjudicator in the 14-day window and cranking up a full-blown arbitration referral on the Independent Assessors calculations, why not try to get the correction on the basis of a ‘slip’. But this must be within the incredibly short time window of only 14 days. The legislators definitely dropped the time scale ball with that one had not foreseen the impact of a genuine ‘slip’.
Anyone can make a simple error whose impact can sometimes be crucial. Please always ensure in the letter of Directions that there is a built-in opportunity for correction should the need arise.