In this edition, our retired resident arbitrator graciously accepts an admonitory remark from a pre-eminent jurist and respected arbitrator that the simplest solution is often the best.
Also, not being someone to flout established legal principle, Uncle Oswald calls on the members of the Association to weigh in on a matter of some controversy regarding a certain Mr Hollington…
Send your questions to our General Manager, Rochelle Appleton, at rochelle@arbitrators.co.za. She will gladly share your questions with Uncle Oswald and ensure you receive his sage advice on your arbitration queries.
Duly reprimanded
In the July 2020 edition of Arbitrarily Speaking!, in answer to Dick Dodger’s question relating to the relevance of an arbitrator’s notes for purposes of Uniform Rule 53, I placed reliance on our editor’s summary of the judgment in Zamani. I concluded that an arbitrator’s notes do not form part of the record of the proceedings for purposes of an arbitration review under section 33 of the Arbitration Act, No. 42 of 1965.
I was delighted to receive, longi manu, a response from one of the three esteemed arbitrators under review in Zamani. True to his delightful form, he reprimanded me for my omission of the most important lesson to be learnt from the judgment: destroy your notes upon publication of your award! Ani maskim, and toda.
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Opinionated
Dear Uncle Oswald
It is me again. I was the self-represented claimant, the contractor, in a recent construction related payment dispute. In consequence of a dispute between me and the employer, as the respondent in the proceedings, an adjudicator ruled in my favour. The respondent gave notice of dissatisfaction with the adjudicator’s decision. We are now in arbitration. In opening argument this morning, I placed reliance on the adjudicator’s reasoning and findings. I made the submission that the adjudicator already found that I had proved every element of my claim. My argument was that the arbitrator must accept the adjudicator’s decision and that it is not necessary for me to prove my claim before her, again. Her response was to remind me of the rule in Hollington. Please enlighten me; where is Hollington and what is the rule?
Fearless Frikkie
Dear Frikkie
It is good to hear from you again, and to see that you have not lost your appetite for alternative dispute resolution.
The rule in Hollington is, according to some, including my dear friend Professor David Butler, a controversial topic. It had its origin in an English judgment that appeared towards the end of my active career as an arbitrator. The judgment is reported as Hollington v F Hewthorne & Co[1943] 2 ALL ER 35. The facts of the matter arose from a collision between motor vehicles. The driver of the defendant’s vehicle was convicted in a criminal court on a charge of reckless driving. The plaintiff’s car was damaged in the collision. In subsequent civil proceedings, the plaintiff sought to recover his damages from the defendant. Before the hearing, the plaintiff’s driver, his only witness, passed away. The plaintiff sought to use the criminal conviction of the defendant’s driver to establish his case in the civil claim. The English Appeal Court ultimately determined that the finding of the criminal court was an irrelevant and inadmissible opinion in the subsequent civil proceedings. The rationale behind the court’s determination was that, had the criminal conviction been admissible evidence in the subsequent civil proceedings, it might lead to a situation where the defendant could challenge the correctness of the criminal conviction and the civil court would have to retry the criminal proceedings. This became known as the rule in Hollington and it was adopted in South African jurisprudence.
You may well ask what the relevance of all of this is to the decisions or awards of tribunals dealing with adjudications and arbitrations. Well, the High Court held in Graham v Park Mews Body Corporate2012 (1) SA 355 (WCC), at paragraph [60], that there seems to be a general rule that the findings of one tribunal cannot be used to prove a fact before a subsequent tribunal.
So, there you have it, Frikkie. On my reading of the law as it stands, your arbitrator is correct. The rule in Hollington applies to the arbitral proceedings before her and it dictates that you cannot rely on the adjudicator’s findings to prove your claim. You will unfortunately have to go through the exercise again.
But, as I have pointed out, this has always been a controversial topic. I would love to hear from you and from our other readers whether you all think that the rule in Hollington should, in principle, still find application in South African courts and tribunals and, of course, why you think it should or should not apply.
Regards
Uncle Oswald