THE SECOND SCHEDULE
1. The normal procedure (which shall apply unless the parties agree otherwise) requires service of claim submissions. If, exceptionally, formal pleadings are thought appropriate (e.g. in more complicated references) special permission must be obtained from the tribunal. Whether claim submissions or points of claim are served, they must set out the position of the claimants in respect of the issues that have arisen between the parties as clearly, concisely and comprehensively as possible, and must always be accompanied by all supporting documentation relevant to the issues between the parties.
2. Except in unusual cases (e.g. applications for interim final awards for sums which are said to be indisputably due and owing) defence submissions or, if the tribunal has permitted formal pleadings, points of defence (and counterclaim, if any) with all documentation relevant to the issues between the parties (other than that disclosed by the claimants) are to be served 28 days after receipt of the claim submissions or points of claim. An allegation that all relevant documentation has not been disclosed with the claim submissions or points of claim will not normally be a reason for allowing additional time for service of defence submissions or points of defence. However a failure to disclose all relevant documentation at an appropriate stage may be penalised in costs.
3. Submissions in reply or, if the tribunal has permitted formal pleadings, points of reply are to be served 14 days after service of submissions or points of defence unless there is also a defence to a counterclaim, in which case the submissions or pleadings are to be served within 28 days from receipt of the submissions or points of defence and counterclaim. Any reply to the defence to counterclaim must be served within 14 days thereafter.
4. A party serving supporting documentation must check with the tribunal whether it wishes to receive copies of all or some of the documentation at that stage. The aim should be for a tribunal to see enough documentation to be able to identify the issues in the case but not to be burdened with, for instance, copy invoices at the commencement of a reference.
5. All submissions and pleadings must be set out in numbered paragraphs.
6. Bare denials in response to an allegation will not be acceptable. If an allegation is denied, reasons must be given and if appropriate a positive contrary case put forward.
7. Applications for security for costs will not be considered until after service of defence submissions (or points of defence, if formal pleadings have been permitted). Any application must be accompanied by a justification for it and a breakdown of the costs which it is reasonably anticipated will be incurred up to the stage of the reference for which security is sought. In the light of paragraph (E) of the First Schedule it will not be appropriate for security for costs to include any provision for the fees of a tribunal.
8. Unless the parties agree that the reference is ready to proceed to an award on the exclusive basis of the written submissions that have already been served, both parties must complete the Questionnaire set out at the end of this Schedule within 14 days of the service of the final submissions or pleadings as set out in paragraph 3 above. Every such Questionnaire must contain the declaration set out at the end of the Questionnaire below, which shall be signed by a properly authorized officer of the party on whose behalf it is served. Completed Questionnaires must be served on the tribunal and the other party or parties. Unless the parties agree, the tribunal will then establish the future procedural course of the reference, either on the basis of the Questionnaires and any other applications made to it in writing or, if appropriate, after a preliminary meeting.
9. Subject to any specific agreement between the parties or ruling from the tribunal, both parties are entitled at any stage to ask each other for any documentation that they consider to be relevant which has not previously been disclosed. Parties will not generally be required to provide broader disclosure than is required by the courts. Generally a party will only be required to disclose the documents on which it relies or which adversely affect its own case, as well as documents which either support or affect the other party’s case.
10. If a party wishes to obtain disclosure of certain documents prior to service of submissions or a pleading, it must seek the agreement of the other party, failing which it should make an appropriate written application to the tribunal, explaining the rival positions of the parties in question.
11. In appropriate cases the tribunal may order the service of a statement of truth signed by an officer or by the legal representative of a party confirming the accuracy of any submissions or of any declarations that a reasonable search for relevant documentation has been carried out.
12. Subject to contrary agreement of the parties or an appropriate ruling by the tribunal, the parties will be required to exchange statements of evidence of fact (whether to be adduced in evidence under the Civil Evidence Acts or to stand as evidence in chief) as well as expert evidence covering areas agreed by the parties or ordered by the tribunal within a time scale agreed by the parties or ordered by the tribunal. Statements of evidence of fact or expert evidence that have not been exchanged in accordance with these provisions will not be admissible at a hearing without leave of the tribunal which will only be granted in exceptional circumstances.
13. Any application to a tribunal for directions as to procedural or evidential matters should, save in exceptional circumstances, be made only after the other party has been afforded an opportunity to agree, within three working days, the terms of the directions proposed. Any application that has not previously been discussed with the representatives of such other party and that does not fully record the rival positions of the parties will normally simply be rejected by a tribunal. If a party has been requested by another party to discuss and agree any application, but has failed to respond within three working days (or such other time as may be allowed by the tribunal), the tribunal will not elicit the comments of that party or make orders conditional on objections not being received.
14. Communications regarding procedural matters should be made expeditiously.
15. Tribunals will not acknowledge receipt of correspondence despite any request to that effect unless there is particular reason to do so.
16. Only in the most exceptional circumstances can it be appropriate for a party to question the terms of any procedural order made or seek a review of it by the tribunal.
17. If a tribunal considers that unnecessary costs have been incurred at any stage of a reference, it may of its own volition or on the application of a party make rulings as to the liability for the relevant discrete costs. Unnecessary costs may be incurred by, e.g., inappropriate applications having been made or not agreed, excessive photocopying or unnecessary communications being generated by the same message being sent by fax and/or e-mail, and mail and/or courier. Tribunals may order such costs to be assessed and paid immediately.
(Information to be provided as required in paragraph 8 of the Second Schedule to the LMAA Terms)
As many as possible of the procedural issues should be agreed by the parties. If agreement has been possible, then please make that clear in the answers to the Questionnaire.
1. A brief note of the nature of the claim (e.g. "unsafe port" or "balance of accounts dispute").
2. Approximate quantum of the claim.
3. Approximate quantum of any counterclaim.
4. The principal outstanding issues requiring determination raised by the claim and any counterclaim.
5. Are any amendments to the claim, defence or counterclaim required?
6. Are any of the issues in the reference suitable for determination as a preliminary issue?
7. Are there any areas of disclosure that remain to be dealt with?
8. Would a preliminary meeting be useful, and if so at what stage?
9. What statement evidence is it intended to adduce and by when; and (if there is to be a hearing) what oral evidence will be adduced?
10. What expert evidence is it intended to adduce by way of reports and/or oral testimony and by when will experts reports be exchanged? Generally a meeting of experts will be useful. Unless the parties agree or the tribunal rules that such a meeting would not be appropriate, when should the meeting take place?
11. Suggested timetable for preparation for the close of submissions if the case is to go ahead on documents alone or for a hearing if that is appropriate.
12. Estimated length of the hearing, if any.
13. Which witnesses of fact and experts is it anticipated will be called at the hearing, if there is to be one?
14. Is it appropriate for a hearing date to be fixed now? (Save in exceptional circumstances, a hearing date will not be fixed until the preparation of the case is sufficiently advanced to enable the duration of the hearing to be properly estimated; this will normally be after disclosure of documents has been substantially completed.)
15. Estimated costs of each party
(i) up to completion of this Questionnaire; and
(ii) through to the end of the reference.
16. Does either party consider that it is entitled to security for costs and, if so, in what amount?
17. Have the parties considered whether mediation might be worthwhile?
DECLARATION (TO BE SIGNED BY A PROPERLY AUTHORISED OFFICER OF THE PARTY COMPLETING THE QUESTIONNAIRE: SEE PARA. 8 ABOVE):
On behalf of the [claimants/respondents] I, the undersigned [name] being [state position in organization] and being fully authorised to make this declaration, confirm that I have read and understood, and agree to, the answers given above.
Signed ………………………………… Dated ………………………………..