Case Preparation in an Arbitration or the Small Claims Track in Court. The principles of case preparation explained are valid whatever the forum and points relevant to  Court processes are in colour.

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.

Agreement to resolve a (computer) dispute by Arbitration.

Model Statement of the Parties' Positions.

Points of Claim / Statements of Case by the Computer User.

Points of Defence / Defence.

Counterclaim.

Notes on completing the Statements of the Parties Positions.

Action Plan.

===================================cut 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 of Dynevor, Park Road, Stroud, Gloucestershire GL5 2GF.

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==============

Model statement of the parties Positions

A Cover Sheet as below is required for every Statement of the Parties' Positions prepared in a dispute. The expression "Statement of the Parties' Position" used here is intended to be descriptive as it is not in general use. The expression Case Statement is more widely understood in arbitrations and the expression Pleadings is normally used in court proceedings.

• The name and reference numbers of the tribunal or court that is to hear the case.
  
  
  
  
• The Computer User's name and their reference
  
  
• Address
  
  
  
• The Computer Supplier(s)' name and their reference
  
  
• Address
  
  
  
• The Finance Company's name and their reference
  
  
• Address
  
  
  
  
  
• The Arbitrator's name
  
  
• Address
  
  
  
  A heading appropriate for the document should be used
  Arbitration -- Court
  
  
  
  Points of Claim -- Statement of Case
   
  Points of Defence -- Defence
   
  Reply -- Reply

  
  
  

  The date on which a copy of this Statement of the Parties' Positions is sent to each of the other parties and to the arbitrator or court.

  
  
  This Statement of the Parties' Positions was prepared by
  
  of
  
  Their reference (if any)
  
  
  
  
  
  
  

  ===End=of=Cover=Sheet=for=a=Statement=of=the=Parties=Positions===
  
  
  
  
  Points of Claim or Statement of Case by the Computer User/Computer Hardware Supplier/Computer Software Supplier/Finance Company (as appropriate)

   

  1. Preliminaries

     State who you are and what part you played in the business done.

     
     

  2. State in separately numbered paragraphs who you understand each of the other parties are and what part you understand they played in the business done. It is desirable and in court proceedings mandatory, that registered company numbers are be quoted for certainty of identification.

     
     

  3. Representations.

     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.

     
     

  4. The Contract.

     
     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.

      

  5. The Payments.

     
     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.

     
     

  6. What the Computer User believes should have happened.

     
     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.

     
     

  7. What the (Computer) User found did happen. Detail those things that were not in conformity with what should have happened as referenced under 6 above. Enter the number(s) of the document(s) in the bundle of evidence that supports what you assert. Despite what the next paragraph says do not include the evidence here. The next paragraph is to make sure that you have properly thought through what it is that you wish to assert here.

     
     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.

     
     

  8. What were the losses?

     
     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.

     
     
     
     

  ===========================End=of=Points=of=Claim.==/==Statement=of=Case==================
  
  
  
  
  
  Points of Defence by [state who]
  Defence
  
  Note: An arbitrator or anyone else judging a dispute will take any assertion that is not denied as being a true assertion. It is not necessary at the statement stage to prove the assertion wrong but it is essential to deny the assertion. Natural justice requires that a party should know in advance what it is that they have to prove or disprove. "Holding you cards close to your chest" will gain you nothing but will lose time and you can be made to bear the cost of the lost time. In extreme cases an Arbitrator or Judge may rule that you cannot even show your "cards" when you want to and in that case you might as well not have them.

  
  
  

  1. Preliminaries

     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.

     
     

  2. Representations.

     
     Set out those representations that you accept as having been made and specifically deny all, each and every other.

     
     

  3. The Contract.

     
     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"

     
     

  4. The Payments.

     
     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.

     
     

  5. What should have happened.

     
     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.

     
     

  6. What did happen.

     
     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.

     
     

  7. The losses.

     
     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.

     
     

  8. Counterclaim.

     
     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.

      

  
  
  
  
  
  
  =========================End=of=Points=of=Defence==/=Defence=================
  
  
  
  Notes on Completing the Statements of the Parties' Positions -- Case Statements -- Pleadings ie the Points of Claim, the Points of Defence and Counterclaim. (Particulars of Claim, Defence and Counterclaim in court.
  
  These notes give the position overall and if they repeat anything in the notes contained above or elsewhere on this website that is because it is important. The Statement of the Parties' Positions is written starting as a "Claim by the (Computer) User". The same format with appropriate alterations to the wording may be used for a claim by any other party.

  
  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.

  
  
  
  
  
  

  Action Plan
  A checklist on performing the steps set out above in an Arbitration. There is no Court Office in an Arbitration to advise on procedure although the Arbitrator may be prepared to give limited help.

  
  

  1. Agree with the other parties that you will resolve your disputes by arbitration. If you already have an arbitration clause in your contract it is not essential to go through steps 1 to 5 to produce a new arbitration agreement although consideration has to be given as to how the arbitrator is to be appointed. If you and your opponent can agree on who you are going to have as your arbitrator and he agrees to do the job remember that one volunteer is worth ten pressed men. If the arbitrator thinks that you are going to cooperate between you he is likely to be prepared to accept a lower fee for his services. An arbitrator appointed from outside is to an extent, put on the parties and may be nobodies choice and in any event he knows that he is to serve parties who were not able to agree on even the simplest of things.

     
     

  2. Complete the "Agreement to resolve a computer dispute by Arbitration" with the names and addresses of all the parties.

     
     

  3. The parties should each sign the Arbitration agreement. Signatures are desirable but not essential as once agreement has been reached it is binding as soon as it is recorded in writing.

     
     

  4. Anyone can be an arbitrator but you are recommended to have someone who has been trained by The Chartered Institute of Arbitrators. Associates (ACIArb) are in an interest grade and probably intending to has pass the examinations, while Fellows (FCIArb) are established arbitrators and Registered Chartered Arbitrators are the  100 or so most experienced arbitrators. Fees are negotiable but increase up the grading. If the parties are agreed on an arbitrator they can negotiate his fees but if he is appointed for the dispute he has the power to set his own fees. An arbitrators fees can be challenged through the courts but it might cost you more than you save to do so.

     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.

     
     

  5. Each party should have a copy of all the other parties' signatures on the arbitration agreement. A copy should also be sent to the named arbitrator. If no arbitrator is named a copy of the agreement should be sent to The British Computer Society, 1 Sanford Street, Swindon, Wilts SN1 1HJ with a request that an arbitrator be appointed. Giving the name and address of The British Computer Society here is just part of the linga franka of these notes, in practice select the professional body most closely associated with the matters in dispute. The Law Society will ,for instance, (unless asked otherwise) appoint a solicitor because that is what you have appeared to want by approaching them.
     
     Steps 1 to 5 have been written as for an arbitration. If a Claim Form has been taken out in the court the court office will deal with equivalent matters. The court fee is a fixed sum and you get the judge whose turn it is. There will only be one judge for the whole of the trial but you may have seen a variety of other judges earlier. They will all be lawyers. If they are called deputy judges they are practising lawyers engaged by the day as judges. Deputy-judging is one of the ways used by the Lord Chancellor to assist in determining whether an individual is suitable for appointing as a judge. As a matter of interest it is worth knowing that there is a Judicial Studies Board responsible for training judges.
     
     If you do have an arbitration agreement with someone and they do take out a summons react quickly as you only have 14 days in which to decide whether to stay with an arbitration or the allow the matter to go to court.

     
     

  6. The responsibility of getting the arbitration started (steps 1 - 5) rests with whoever is to complete the Points of Claim Particulars of Claim. A copy of the Points of Claim should be sent to the Arbitrator as soon as possible and a Statement of Case to the court within strict time limits.

     
     

  7. It should be clear who is to complete the Points of Claim Particulars of Claim and they should start the ball rolling. If you just have an amicable difference toss a coin to decide who is to start, it is of no consequence in the end.
     
     Paragraphs 8 through 23 below are written for an arbitration. As set out below they may appear quite leisurely. In fact an arbitrator if likely to order Directions that require a strict timetable that is appropriate for a particular dispute. A judge will do much the same. 
     
     The pattern described is similar in principle to that followed in the court system - it has to be because otherwise one might be thought to be "fairer" than the other. The real difference is that the court system is administered by the court office following the rules while an arbitrator is required to "adopt procedures suitable for the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined" which imposes on the arbitrator a need for flexibility fortified by firmness. If an arbitrator does not meet this requirement then action against him personally through the courts may be threatened or taken.

     
     

  8. Prepare the Bundle of Evidence to support the Points of Claim. Send copies of the Points of Claim and the Bundle of Evidence to each of the other parties. Send one copy to the Arbitrator.

     
     

  9. Evidence is not called for in making Statement of a party's contentions as at this stage justice merely requires that everyone should know the case they have to answer. Any evidence on which you rely should be included in a Bundle and cross referenced to the Statement from where it can be considered at a later stage.

     
     

  10. Steps 7 and 8 should be repeated with the Points of Defence (and Counterclaim if any) by each of the other parties in the dispute.

      
      

  11. When the Points of Defence are complete any party may make a further riposte called a "Reply" to answer the points made or counterclaimed.

      
      

  12. If any party is not clear what contentions are made against them they may ask for "Further and Better Particulars" generalised as being enquires in our explanation of arbitrators directions. When asking for further and better particulars, spell out the words you are doubtful about and be very specific about the particulars you need in regard to those words. Remember that the particulars you are seeking are with regard to the complaints made against you (or in response to a complaint), no one has to answer questions regarding their evidence, that is cross-examination and comes later.

      
      

  13. As steps 7 to 12 are complete copies of all the various "Points" and "Replies" should be sent to the Arbitrator by those that produced them.

      
      

  14. The Arbitrator will if necessary perform a co-ordinating function while steps 7 to 12 are progressing. Copies of any letters to the Arbitrator should be sent to all the other parties and he will do likewise with his replies. The Arbitrator must be seen to be evenhanded. Try not to telephone the Arbitrator but if telephoning is essential, pass messages through a junior employee. Multi-way telephone calls or video conferencing may be usefull.

      
      

  15. After the Arbitrator has all the various "Points" and "Replies" he will formally accept the appointment as Arbitrator if he has not done so earlier. On accepting the appointment the Arbitrator will confirm the arrangements for his fees and any other conditions for accepting the appointment. An Arbitrators appointment is by contract and is negotiable just like any other and be aware that if the Arbitrators fees are not agreed then they will be on the statutory basis which broadly means that he can charge any reasonable fee. .

      
      

  16. Having accepted the appointment the Arbitrator will then look at the bundles of evidence. An arbitration is much less costly if the Arbitrator can make his Award after consideration only of the bundles of written evidence. This Action Plan is written on the basis that the Arbitrator will consider the bundles of evidence, perhaps ask questions in writing and then, when he has considered all the evidence judicially, prepare his award.

      
      

  17. If the parties wish and are prepared to pay for it an Arbitrator might be persuaded to produce an inconclusive "What it looks like to me" Report to which the parties may make submissions if they think that there are points the Arbitrator has not appreciated. Production of such a Report could be a "first look cost saving measure" done for a fixed fee but whatever arrangements are made they quite definitely have to be non-binding and revisable in the light of further evidence or submissions by any party. If you have a technical arbitrator it should be less expensive to have him look at technical matters rather than each party needing to engage an expert witness of their own to tell the arbitrator things that he should know about better than the experts anyway. If he does not then perhaps he should not have been appointed.

      
      

  18. If the parties wish and the Arbitrator agrees an oral hearing may be held before the Arbitrator (the day in court) but the arrangements for oral hearings are made on a one-off basis to suit everyone's convenience and are so are outside the scope of this Action Plan.

      
      

  19. When the Arbitrator has his Award ready he will tell each of the parties and the custom is for an Arbitrator to send the original award to whoever pays any outstanding arbitrator's fees with copies of the Award sent to all the other parties.

      
      

  20. An Arbitrator's Award may be enforced through the courts in the same way as a court judgment. Winning your case and getting your money is always a two stage process. For practical purposes consider that there is no appeal from an Arbitrator's Award.

      
      

  21. The Arbitrator's Award will finally settle the dispute usually by ordering payment of some or all the amounts claimed. An Arbitrator will also direct who pays who's costs as well as who bears his fees irrespective of who has paid any deposit or otherwise in the meantime. An Arbitrator can only award what has been claimed so include interest, costs or anything else you are out of pocket in your claim.

      
      

  22. Arbitrations are confidential to the parties. Press publicity is not permitted nor may outsiders know what is going on or be admitted to a hearing unless all the parties agree.

      
      

  23. At any time the parties can agree on almost anything. An arbitrator is obliged to meet the parties' wishes with regard to most of the things on which the parties might agree. It is the parties' ability to agree themselves out of a dispute or to disagree themselves into a long haul that leads arbitrators to require deposits, interim payments, minimum fees, ongoing administrative costs or other protective measures.

                          This material last updated 4 November 2001