Disputes arising over the supply, financing or use of, for example, computer
systems (but anything else for that matter) may be resolved by the parties own
efforts using the services of an independent arbitrator and the guidance
provided by this kit and the linked materials. As computer systems are
universally used and problems occur a computer dispute has been taken as the
lingua franca for these notes.
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here===========================
Agreement to
Resolve a (Computer or any other) Dispute by Arbitration
We, the
parties
1. The Computer User (The Customer)
of Address
2. The Computer Supplier(s)
of Address
3. The Finance
Company
of Address
are agreed that all disputes or differences between us of any kind whatsoever shall be resolved by Arbitration. The Arbitrator shall be: Clifford Charles Dilloway.
If the named Arbitrator does not accept the appointment the Arbitrator is to be appointed by the President of The British Computer Society.
Signed:
For the Computer User (date)
For the Computer
Supplier (date)
For the Finance Company (date)
=======End-of-Agreement-to-resolve-a-Dispute-by-Arbitration==============
This Statement of the Parties' Positions was prepared by
of
Their reference (if any)
State who you are and what part you played in the business done.
List in a numbered sequence all those things that you say the Computer Supplier(s) gave you to understand would be so about your computer, (or whatever) and on which you relied in making the acquisition. Enter the number(s) of the document(s) in the bundle of evidence that supports what you say.
NOTE
A bundle of copies of all the documents that you have or can get
hold of should be prepared in one chronological sequence and each
separate page should be numbered. A list of the documents must be
served on the other parties (CPR 31.10) in court proceedings and
Arbitrators usually order something similar.
Set out the circumstances in which you agreed (orally or in
writing) to do the business of acquiring the computer or whatever it
is that is the subject matter of the dispute. Give details of the
hardware, software etc and the prices. Give the numbers of the
documents in the bundle of evidence that support your assertions.
Set out the arrangements made for payments between the
parties. Show which payments have been made in part or in full. Give
the numbers of the documents in the bundle of evidence that show the
making of the payments.
Give the how, why, what, where and when of what should have
happened. Make reference to "functional requirements",
"specifications" or manuals, other documents etc in the bundle of
documents which describe what the Computer User believed the
computer system or whatever would conform to or do. Include dates by
which milestone events were due. The Computer User who can show
beyond reasonable doubt what it was that had been agreed would be
supplied is a stronger position than a Computer User who can only
show on the balance of probabilities that what he now says was in
the agreed minds of the parties at the time the business was set up.
With a product of a standard specification and not so infinitely
variable as a computer and its software the normal expectations of
the trade (if they are well evidenced) is as good as the more
detailed documents needed in computer systems practice. These
comments probably reveal that the purchaser of a computer does not
just have to be aware of what he wants, he also has to make it work.
The courts have taken this view, it is not just the authors own
view.
None of this is to say that a supplier can deliver something
that does not work, is not suitable and which even he cannot make to
work. There is a difficult dividing line here and evidence is needed
to illuminate it. Do not fall for saying that goods supplied under
contracts dated after 3 January 1995 were not of "merchantable
quality". The law changed as from that date and goods had to be of
"reasonable quality". In practice of course goods that give rise to
cause of complaint are almost certain to be "not of merchantable
quality" and "not of reasonable quality" but it helps to assert the
correct legal requirement.
Of all the things that have to be proven "what did happen" is
probably the most difficult. We say that because it is probably some
complaint over what did happen that is at the heart of the case.
There are no rules as to what the arbitrator
or judge has to accept as convincing
evidence. Take it that evidence in writing is more convincing
than oral evidence. Written notes made at the time are more
convincing than those made two days later by which time it has
become clear that there is a dispute coming. Evidence from
independent persons is more convincing than that given by a
relative. As we say there are no rules, just put yourself in the
position of the arbitrator or judge
and think which of the various stories being told is more
likely to be true on the balance of probabilities. It is probably
true to say that the most frequent thought after the event by
someone who has lost a case is "if only I had brought forward that
extra piece of evidence". But be careful, do not make your story so
convincing that it could not possibly be true.
In consequence of what did happen (7 above) not being up to
what should have happened (6 above) Computer User (a) spent money
for which he got no benefit, (b) did not obtain income he would have
done and/or (c) is having to meet ongoing expenses including
interest on his money and indulging in the court proceedings or
arbitration. List and total these losses and set off any contrary
items. Provide your detailed workings in the bundle of evidence.
Specifically ask for seeking. The principle of "those that do not
ask so not get" is rigidly applied because in a dispute it is only
fair if everyone knows what they are up against
The paying of money for losses is the usual way to finalise a
dispute. However there is no reason why a claim should not be made
for some specific action to be carried out. There can be occasions
when it is in the parties' interests to resuscitate a computer
system or have someone else put it in good working order.
Arbitrators can act quickly if required.judges
can also act quickly with orders that things be done or not
done especially in cases such as preserving evidence or stopping
continuing harmful actions. But you cannot negotiate with the court
over a quick hearing date or an evening hearing at a particular
place like you can with a remunerated arbitrator.
NOTE: As computers are widely used in business these Model
Statements of the Parties Positions ie Pleadings have made reference
to computers as a "linga franca". In practice the model statement
wordings may be adjusted to refer to whatever the dispute concerns.
State in separately numbered paragraphs where you differ (if you do) from the who you are and the what you are statements given in the Points of Claim / Statement of Case.
Set out those representations that you accept as having been
made and specifically deny all, each and every other.
Confirm or deny that a
contract was entered into in the terms set out in the Points of
Claim / Statement of Case. If there are conditions in the contract
on which you rely to restrict your liability set these out in full.
Give details of any further contracts that you say modify the
original contract. Make reference to the evidence you have in your
bundle of documents that you say shows what was agreed.
NOTE: "Contract Formation" is always important. Take it that
whatever the parties expected of each other as of the last position
before all the others gave an unambiguous and unqualified YES ( or
got on with it which amounts to the same thing ) is the contract and
it is the "YES" that makes it so. If you do not want to proceed on
this simple legal proposition talk to a lawyer and he will talk to
other lawyers and you could well find a way of establishing that
your contract doesn't follow the "last thing before the YES rule"
Accept or deny what is set out in the Points of Claim /
Statement of Case, and show what you assert is the true position. Do
not set out here what you allege are sums due to you but include
them in your Counterclaim which comes later.
Confirm or deny what is set out in the Points of Claim /
Statement of Case. Make reference to any documents in the bundles of
evidence on which you rely. Remember that under this point you
should only deal with those matters that it is asserted were agreed
between the parties in accordance with the contract.
Confirm or deny the Points of Claim / Statement of Case. Set
out your view of what did happen. If what did happen was not in
conformity with what you say under 5 above, set out the cause and
show who or what was responsible. Remember to make reference to the
documents in the bundle of evidence on which you rely.
Take note of what is said under what did happen in the Points
of Claim above and while you will not know just how your opponent
will present his evidence (he might not know either) be ready to
dispute his version of what did happen with your version of what did
happen.
Confirm or deny the matters and figures given for losses
quite separately. If necessary you may say that while you deny that
such a loss occurred, and if it did it was not your responsibility,
you nevertheless can agree (or put forward your own workings of)
figures as figures so that the Judge or Arbitrator can decide
liability to pay, and how much, quite separately. Your own losses go
in the counterclaim that follows but contrary items should be
included in your workings here. The expression "Figures as figures"
means that here is a starting set of calculations submitted to save
time but no liability is accepted based on those figures.
A counterclaim is no more than a claim for his own losses
made by someone who happens to have a claim made against him
already.
Follow the model, that is paragraphs 1 to 7 above, of the
Points of Claim / Statement of Case to formulate your Counterclaim.
Carry on with the paragraph numbering consecutively and make
appropriate changes in the wording.
The Statement of the Parties' Positions may be used as a
pro-forma (ie fill it in like a form) or as a model that may be adopted
to suit a particular dispute. Run the document on with clearly numbered
paragraphs and sub-paragraphs. There are not really any rules in the
layout of these statements that will be used against you to your
disadvantage providing you have made it clear to your opponent what the
case is that he has to answer and do not admit to anything that you do
not wish to admit to.
Justice requires that every party to a dispute
should make available to all the other parties copies of all relevant
documents in their "control, custody or power". Get your documents into
date order, as a Bundle of Evidence called a Trial Bundle in court (see
PD39/3). Hold a copy of the bundle ready for the arbitrator
or court. Make reference to the
numbers of the pages of the documents that support your contentions in
the statement of your position. A bundle of evidence may include signed
witness statements. Witnesses should be prepared to attest to their
statements on oath and be prepared to answer written questions in
writing if their statements are to be given full weight. Add documents
that come to light later into their correct date order and use "A", "B",
"C" etc numbering.
Any party against whom a claim is made should prepare a "Points
of Defence" or "Defence" in court
refuting anything they do not agree with and setting out what they
think. A "defending" party can make out their own Points of Claim
calling it a Counterclaim. A claim against one party can be passed on as
against another, "adopt" the Claim and use that word or you may find
that there may be found to be some difference between the claim made
against you and the claim you have made against another.
If
necessary make a further response to "Points of Defence" /
"Defence"and call it a "Reply" /
"Reply". Note well that Statements of
the Parties' Positions are just that, ie contentions as to what the
facts of the matter are. Make full reference to the evidence on which
you rely but do not include the evidence in the Statements.
The arbitrator or judge will
decide who was "right" on the balance of probabilities according to the
evidence put before him. It is worthwhile obtaining friendly advice from
someone such as a police officer experienced in telling the difference
between hard evidence and a firm conviction that cannot be
substantiated. Be warned that arbitrators
and judges find that many cases are weakly presented. It is the
quality not the quantity of evidence that has the greatest weight. Too
much emphasis cannot be placed on producing convincing evidence so that
there is no doubt whatsoever about the facts. Written notes, however
scrappy, made at the time are more convincing than something very well
prepared for the purposes of the dispute.
Some wider thought is also necessary over who is to be named as arbitrator. Expect whoever is appointed to follow the mores of their first profession. A joint telephone call by the parties to the arbitrator to ask how he is prepared to proceed, but without discussion of a particular dispute, is in order. Expect a prospective arbitrator to quote the hourly/daily fee basis on which he will charge for his services. The amount of time an arbitrator needs to devote to a dispute is largely dependent on how the parties conduct their cases. Please remember this if you feel tempted not to cooperate. If your opponent can be shown to be deliberately obstructive ask the Arbitrator to make a special note as to costs. Arbitrators,but not judges have the power to limit or cap the recoverable costs of a winning party that will fall to be paid by the loosing party so consider asking a prospective arbitrator if he is prepared to do that for you.
Resist the temptation to insist on having the very best arbitrator, he is very busy with a full diary with the consequential problems flowing from that.