TDSL is unjust in dispute resolution and won't see sense

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    #16
    Originally posted by jta View Post
    So given that! Even though a paper has been signed to accept the decision, if the parties believe there to have been a mistake in law, could the decision be challenged? ( I think 'set aside' is the phrase)
    Ha ha, I wish you hadn't asked me that, because I actually attended a lecture last year on "The Inherent Jurisdiction of the High Court to Stay Proceedings in Aid of Arbitration Agreements" (or something similar). Unfortunately, I don't know the answer to your question off the top of my head because the lecture was so dull that I fell asleep.

    However, my gut feeling is that a party could have the decision set aside in such circumstances. I'll look it up and get back to you.

    Arbitration Act 1996

    s.69

    Appeal on point of law

    (1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings. An agreement to dispense with reasons for the tribunal’s award shall be considered an agreement to exclude the court’s jurisdiction under this section.

    (2) An appeal shall not be brought under this section except—

    (a) with the agreement of all the other parties to the proceedings, or

    (b) with the leave of the court.



    As the TDP ADR is a special case, I don't know whether it is deemed to be an arbitration for the purposes of the Act (although I think it would, being a creature of statute). However, even if the TDP ADR was outside the scope of the Act, I imagine the same principles could probably be unearthed somewhere at common law, if one had the time and inclination to do the necessary research.
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    I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

    All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

    Comment


      #17
      The editing window timed out when I was in the middle of posting

      As a general principle....

      Arbitration Act 1996


      s.69

      Appeal on point of law


      (1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings. An agreement to dispense with reasons for the tribunal’s award shall be considered an agreement to exclude the court’s jurisdiction under this section.

      (2) An appeal shall not be brought under this section except—

      (a) with the agreement of all the other parties to the proceedings, or

      (b) with the leave of the court.



      As the TDP ADR is a special case, I don't know whether it is deemed to be an arbitration for the purposes of the Act (although I think it would, being a creature of statute). However, even if the TDP ADR was outside the scope of the Act, I imagine the same principles could probably be unearthed somewhere at common law, if one had the time and inclination to do the necessary research.

      However, by s.87, it is possible for parties to agree to exclude the jurisdiction of the court. IIRC, the Housing Act or its associated SIs don't actually provide that the TDP ADR decision is final, but, I believe the individual schemes (who are empowered by to make rules) do. As the TDP ADR is voluntary, the parties' submission to arbitration may well count as such an agreement to exclude jurisdiction and the decision would therefore not be appealable. Nevertheless. s.87 only refers to the parties excluding jurisdiction of the courts on a matter relating to a point of law and not to the jurisdiction of the courts to disturb the findings of the arbitrator where there has been a serious irregularity (s.68). In this particular case, it appears there may have been such an irregularity, and so the decision seems to be, in theory at least, appealable under s.68.

      Arbitration Act 1996

      s. 68 Challenging the award: serious irregularity

      (1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the
      ground of serious irregularity affecting the tribunal, the proceedings or the award.

      A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3).

      (2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant—

      (a) failure by the tribunal to comply with section 33 (general duty of tribunal);

      (b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see section 67);

      (c) failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties;

      (d) failure by the tribunal to deal with all the issues that were put to it;

      (e) any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers;

      (f) uncertainty or ambiguity as to the effect of the award;

      (g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy;

      (h) failure to comply with the requirements as to the form of the award; or

      (i) any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award.

      (3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may—

      (a) remit the award to the tribunal, in whole or in part, for reconsideration,

      (b) set the award aside in whole or in part, or

      (c) declare the award to be of no effect, in whole or in part.

      The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.

      (4) The leave of the court is required for any appeal from a decision of the court under this section.


      s.87 Effectiveness of agreement to exclude court’s jurisdiction

      (1) In the case of a domestic arbitration agreement any agreement to exclude the jurisdiction of the court under—

      (a) section 45 (determination of preliminary point of law), or

      (b) section 69 (challenging the award: appeal on point of law),

      is not effective unless entered into after the commencement of the arbitral proceedings in which the question arises or the award is made.

      (2) For this purpose the commencement of the arbitral proceedings has the same meaning as in Part I (see section 14).

      (3) For the purposes of this section the question whether an arbitration agreement is a domestic arbitration agreement shall be determined by reference to the facts at the time the agreement is entered into.
      Health Warning


      I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

      All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

      Comment


        #18
        Originally posted by Esio Trot View Post
        ADR is a very easy system for tenants to use - and its free. When push comes to shove, many tenants in dispute can't be arsed to make a claim in the county court, besides it costing them the court fee unless exempt.
        So an unscrupulous landlord could inproperly dispute for an amount below the "can't be arsed" level, not agree to ADR and L has a source of extra money just like the Bad/Good old days? Wouldn't that make dispute schemes completely pointless?

        David.

        Comment


          #19
          Originally posted by Sully View Post
          So an unscrupulous landlord could inproperly dispute for an amount below the "can't be arsed" level, not agree to ADR and L has a source of extra money just like the Bad/Good old days? Wouldn't that make dispute schemes completely pointless?

          David.
          Well...it wouldn't be quite so easy as the days when LLs could just pocket the deposit (almost as a perk of the job) and tell Ts to beggar off. Having to go through the hassle of going to to court over a few hundred quid when you might lose a good bit more than that if you fail to convince the judge that your claim is watertight...I don't think most LLs would bother, although I see your point.

          And one would hope the average judge would have a firmer grip on the law than the people employed by the TDSL seem to have.
          'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

          Comment


            #20
            Originally posted by agent46 View Post
            Ha ha, I wish you hadn't asked me that, because I actually attended a lecture last year on "The Inherent Jurisdiction of the High Court to Stay Proceedings in Aid of Arbitration Agreements" (or something similar). Unfortunately, I don't know the answer to your question off the top of my head because the lecture was so dull that I fell asleep.
            I find it a great comfort to know that, like me, others have to sit through CPD sessions of stultifying dullness, too.
            'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

            Comment


              #21
              Originally posted by agent46 View Post
              Ha ha, I wish you hadn't asked me that,
              'twas only a little question guv, if I'd known it was going to be such a big answer............!
              I offer no guarantee that anything I say is correct. wysiwyg

              Comment


                #22
                thanks everyone for all research published on here - it will certainly give me some ammunition against DPS - if more than one LL takes on more than one Deposit Scheme in the same time frame - the media might see a "story " - well at least the Property Media might

                Comment


                  #23
                  Originally posted by susanne View Post
                  thanks everyone for all research published on here - it will certainly give me some ammunition against DPS - etc
                  Do let us know how you get on.

                  Comment


                    #24
                    I realise this question has little to do with the thread title but its relevant to the TDS.

                    I've disputed some charges that my ex LL was claiming and aside from sending off all of the supporting documents, haven't had anything significant back. Checking online today and the status has been updated and reads "awaiting DICE approval" does anyone know what this means?

                    Comment


                      #25
                      Originally posted by Gigabyte View Post
                      Checking online today and the status has been updated and reads "awaiting DICE approval" does anyone know what this means?
                      "DICE"? Not a clue. Pick any of these, courtesy of http://acronyms.thefreedictionary.com/DICE:

                      DICEDNA Integrated Cybernetic Enterprises (TV show)DICEDurrell Institute of Conservation and Ecology (University of Kent at Canterbury, United Kingdom)DICEDesign, Innovate, Communicate, Entertain (game developers' conference)DICEData-Intensive Computing EnvironmentDICEDARPA Initiative in Concurrent EngineeringDICEDynamic Integrated Model of Climate and the EconomyDICEDiabetes in Canada EvaluationDICEDoD Interoperability Communications ExerciseDICEDanube Integrated Circuit Engineering GmbH & Co. (Linz, Austria)DICEDelivering Information in a Cellular EnvironmentDICEDefensive Information to Counter EspionageDICEDistributed Information Warfare Constructive EnvironmentDICEDigital Image Correction Enhancement (scanner)DICEDistributed Interactive C31 Effectiveness (simulation program)DICEDashboard Integrated Control Electronics (Saab)DICEDigital Interface Countermeasures EquipmentDICEDeployed Interoperability Communications ExerciseDICEDillon's Integrated C Environment (C compiler for Amiga)DICEDestroyed in a Colored Environment (hip hop artist)DICEData Integration & Collection EnvironmentDICEDeployable Independent Communications ElementDiCEDiscipline Choice in EngineeringDICEData Integration, Collation and Export (multiple data source aggregation environment)
                      JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                      1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                      2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                      3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                      4. *- Contact info: click on my name (blue-highlight link).

                      Comment


                        #26
                        Originally posted by Gigabyte View Post
                        I realise this question has little to do with the thread title but its relevant to the TDS.

                        I've disputed some charges that my ex LL was claiming and aside from sending off all of the supporting documents, haven't had anything significant back. Checking online today and the status has been updated and reads "awaiting DICE approval" does anyone know what this means?
                        Deposit In Chief Executive's (account)?
                        'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                        Comment


                          #27
                          Adjudicator rolls one for T and one for LL - highest wins?
                          PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

                          Comment


                            #28
                            Department of
                            Interference by
                            Central Government
                            Inquisitiveness.
                            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                            4. *- Contact info: click on my name (blue-highlight link).

                            Comment


                              #29
                              Originally posted by Gigabyte View Post
                              ...status has been updated and reads "awaiting DICE approval" does anyone know what this means?
                              Dodgy Independent Case Examiner?

                              My explanation for the 3 letters of the acronym (ICE) are correct, but I don't know what the "D" stands for.

                              However, I prefer Paul Gibbs' version. Given the adjudicators probable lack of legal qualifications, rolling a dice might actually be a fairer way of deciding disputes.
                              Health Warning


                              I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                              All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                              Comment


                                #30
                                Originally posted by Gigabyte View Post
                                I realise this question has little to do with the thread title but its relevant to the TDS.

                                I've disputed some charges that my ex LL was claiming and aside from sending off all of the supporting documents, haven't had anything significant back. Checking online today and the status has been updated and reads "awaiting DICE approval" does anyone know what this means?
                                In TDS documents ICE stands for Independant Case Examiner. DICE = Designated Independant Case Examiner?

                                Comment

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