Effective case management lionel Persey qc quadrant Chambers

---

1 

 

EFFECTIVE CASE MANAGEMENT 

 

Lionel Persey QC 

Quadrant Chambers 

 

London has, until now, been the arbitral forum of choice for maritime disputes.  Over 

the past 50 years the vast majority of maritime arbitrations have been held under the 

auspices of the LMAA.    It would be dangerous to assume, however, that this default 

position will remain.  A third of the world s tonnage is now owned or managed in Asia 

and South-East Asia.  That proportion is likely to increase with the glut of new-

building over the past few years.  The P&I Clubs, to whom we all owe so much, now 

have offices in the Far East to service their members.  Hong Kong, and Singapore in 

particular, are becoming important centres for arbitrations that are held in English 

and which apply English law.   Chinese and Indian parties increasingly wish to 

arbitrate there.  It is inevitable in this changing market-place that we are all going to 

have to work harder to maintain the LMAA s pre-eminent position.     

 

Others speakers have already identified ways (some more controversial than others) 

in which practice and procedure could be altered in order to streamline hearings and 

reduce costs.  A number of distinguished LMAA arbitrators have sought to 

encourage more effective case management in LMAA arbitrations, most recently 

Patrick O Donovan at the recent joint LMAA/CIArb seminar.  I make no apologies for 

repeating today some of the points that Patrick made in his presentation.   

Experience suggests that, unless Tribunals are prepared to take a firm hand and to 

recognise that they need not be beholden to the parties in managing a reference, 

there will be occasions where parties will either ride roughshod over the proceedings 

or will simply not focus early enough upon what needs to be done for the efficient 

and cost-effective disposal of the reference.  In order to prevent this from happening 

all (and not just some) Arbitrators need to take a more robust and pro-active role in 

the management of references.  They should have the confidence to recognise that 

they are not the servants of the parties, and that it may sometimes be inappropriate 

for them to go along with what is being asked of them.  The parties and their 

representatives do not always know what is best for them. 

 

There are a number of case-management techniques that are in wide currency in 

international commercial arbitrations (and indeed in the Commercial Court) but which 

are not always adopted in LMAA references (even though some of them are 

identified in the LMAA Procedural Rules).    I would like to highlight just a few today. 

 

1.  Preliminary meetings.   Paragraph 15 of the LMAA Terms provides that the 

Tribunal may at any stage of the arbitration require that there be a preliminary 

hearing to enable the parties to review the progress of the case and that such 

a hearing should be held in complex cases, including most cases involving a 

hearing of more than 5 days  duration.    In my experience Tribunals do not 

---

2 

 

always call for such hearings and are often prepared to accept the parties  

estimate of the likely length of the main hearing without any inquiry.    The 

advantage of a preliminary hearing is that it forces the parties and the Tribunal 

to give active consideration to what the real issues in the case are and how 

they can best be managed.   I query whether such meetings should only be 

the norm in cases involving a longer than 5 day hearing.   The length of the 

hearing is surely something that is best discussed and determined in a 

preliminary meeting.  Such meetings can take place by way of conference 

call. 

 

2.  Preliminary or key issues.    Courts and tribunals have historically been 

reluctant to countenance the determination of preliminary or key issues unless 

they were satisfied that they were likely to be dispositive of either the whole or 

a significant part of the case.   The Commercial Court is now much more 

ready to determine important issues in a case at an early stage and arbitrators 

should be too.   The resolution of key issues or sample claims in a case 

involving many different heads of claim will often permit the parties to see 

where the land lies and thereby facilitate a settlement without having to go 

through the expense and delays associated with a hearing that resolves all of 

the issues between them. 

 

3.  Correspondence with the Tribunal.    As counsel one is always vaguely 

aware of the several bundles of inter-solicitor correspondence that constitute 

the only files in a case that will never be looked at.   It comes as a real shock 

to see how much of that correspondence flies across an arbitrator s desk.   In 

one recent reference I received or sent (mainly received) over 470 emails.   In 

another, where I was sole arbitrator, over 250.   Both of those cases 

proceeded to full hearings within 8 months of appointment and were very 

actively case-managed.   Nevertheless, many of the emails should never have 

been sent to the Tribunal.   Orders not to make applications without first trying 

to agree them with the opposing party (in line with the LMAA procedural rules) 

would be respected for a week or two before the resumption of the tsunami.   

Threats of costs  orders against the parties fell on deaf ears (as did much of 

the parties  correspondence).   And of course the Tribunal s costs mounted 

significantly because if an arbitrator receives correspondence from the parties 

he or she has to read it and, where appropriate, discuss it with the other 

tribunal members before responding to it.   This all comes at a price.    Add to 

that the very much more significant costs generated by the parties in writing 

the correspondence in the first place and it is easy to see why arbitration can 

be such an expensive process.   The solution is simple - the parties  

representatives should only copy a tribunal into correspondence or make 

applications when it is strictly necessary to do so and should run the risk of 

facing stringent costs orders when they overstep the mark. 

 

---

3 

 

4.  Disclosure.    Many parties, and not a few tribunals, assume that traditional 

High Court-style disclosure should be given in every LMAA arbitration.    I 

believe that assumption to be completely misconceived and I know that a 

number of full-time LMAA arbitrators share that view.   Paragraph 3 of 

Schedule 3 to the LMAA Rules recognises that orders can be made to limit 

the ambit of disclosure to avoid unnecessary delay or expense and 

encourages the tribunal and parties always to give  consideration  to this, 

although I would suggest that the rule is couched in far too permissive terms.   

It is now the norm in international commercial arbitrations for parties to 

disclose only those documents upon which they rely in the first instance, 

leaving it to the opposing party to request those further specific categories of 

documents that they wish to see disclosed.    I believe that this procedure 

should now become the norm in LMAA arbitrations as well.   Requests for 

specific disclosure are made through the medium of a Redfern Schedule, 

named after Alan Redfern who devised the procedure.    It is similar to a Scott 

schedule in layout.   The party requesting disclosure sets out the category of 

documents that it wishes to have disclosed together with succinct reasons as 

to why such disclosure should be given.  The opposing party then responds 

item by item in a separate column.  The Tribunal then records its decision in 

the right hand column.   Properly managed, this procedure can lead to a 

significant reduction in the amount of disclosure that is required to be given 

(and therefore cost).  It also ensures that the parties are focussing on the real 

issues at all stages.   

 

5.  The hearing.   Mention has already been made of those all too many cases 

where the evidence and argument is not completed within the time allotted.   It 

can often be very difficult to reassemble the tribunal and parties.  Consequent 

adjournments inevitably mean extra expense and a delay in the publication of 

the award.  The solution to this is simple and one that I believe should be 

universal.  Once a hearing date has been fixed (at or following a preliminary 

meeting at which proper consideration has been given to the issues to be 

determined, the evidence to be called and the appropriate length of the 

hearing) the parties should thereafter be duty-bound to ensure that the 

hearing is completed within the time allotted.   How does one achieve that?   

By limiting the time available for opening and closing submissions and by 

adopting a chess-clock procedure that divides the available time between the 

parties.   

a.  Openings.   Written openings are now submitted in all LMAA 

arbitrations, and are becoming increasingly detailed.   This does not, 

however, discourage some advocates from seeking to make a detailed 

oral opening and to use that opening to draw the Tribunal s attention to 

the key documents upon which they rely.    In most cases, however, 

this should not be necessary.   The written openings should have 

identified the key documents and the Tribunal should have read them 

---

4 

 

in advance of the hearing.   There are very few cases in which the 

opening submissions of both parties should last more than a morning. 

b.  Chess-clock procedure.   The chess-clock procedure is increasingly 

used in arbitrations.   In my view its use should be the rule rather than 

the exception.    It encourages the parties and their advocates to focus 

on the real issues in the case.  We all know from experience that most 

cases turn on very few key points at the end of the day and that much 

of the evidence that is adduced proves to be completely irrelevant to 

the outcome.  The available time will usually be divided 50:50 between 

the parties, to use how they wish.  When one party is, for good reason, 

calling significantly more witnesses than the other then a different 

allocation of time may be appropriate.  The fair division can usually be 

agreed upon between the advocates, although there are occasions 

when the Tribunal will have to rule.   Absent any bombshells, there 

should be no excuse for hearings overrunning.    There may not be 

time for the advocates to put every part of their case to the other side in 

cross-examination, but so what?   Provided this is recognised and 

understood and the important points are challenged, no prejudice will 

ensue.     

c.  Expert evidence.   The issue of hot-tubbing of experts has already 

been raised, and it is a technique that can work well and save a 

considerable amount of time, provided that the tribunal member is on 

top of the relevant technical issues and incisive in its questioning.    It is 

remarkable how the demeanour of some expert witnesses will change 

when sitting alongside their opposite number and answering questions 

from the tribunal rather than the advocate on the other side.   It is not 

unusual in international commercial arbitrations for the Tribunal to meet 

the experts in the absence of the parties and their representatives and 

either to set them joint tasks or to seek to have them reach agreement 

on selected issues.   Such a procedure has its attractions (the experts 

may be more willing to unbend) but also its potential pitfalls.   In my 

view this technique should only be adopted if the parties are agreeable 

and are kept fully informed as to the subject-matter and scope of any 

discussion between the Tribunal and the experts.    

d.  Closing submissions.  These are usually given in writing and (where 

appropriate) supplemented by short oral submissions focussing on the 

other side s written submissions.   That is as it should be.  If they can 

be produced on the final day set aside for the hearing then they should 

be.   It is remarkable how productive an advocate can be in producing 

submissions to a tight deadline when the evidence and argument is 

fresh in his or her mind.    There is nothing worse as an advocate than 

having to write and deliver submissions long after a hearing is over and 

the adrenalin has subsided.   And there is nothing worse as a Tribunal 

than having to consider such submissions after the faces of the 

---

5 

 

witnesses have slipped from the memory and the whiff of cordite is no 

longer lingering in the air.  In some cases it will be necessary to defer 

closings.   As a Tribunal I have found it useful in more complex cases 

to get the parties to agree a list of those issues that will be addressed 

in their closings and to identify those issues on which I would welcome 

particular assistance.    This helps to ensure that all are agreed as to 

the issues that really matter and that the submissions do not end up as 

ships that pass in the night.