Save cash - let the Beth Din be the judge

By Jonathan Goldberg, May 27, 2010

Joseph from Ilford writes: I am an insurance broker. The landlord of my commercial premises is threatening me with High Court litigation arising from a long-running and angry dispute between us. He claims increases of rent and/or seeks to forfeit my lease because of clients parking on the forecourt. I say that he has failed to keep the entrance and common parts in a clean and decent condition, such that I am losing business. We are both observant Jews. Could an arbitration by the Beth Din be appropriate, and is it binding?

● Joseph, a Victorian judge, wittily said: "The doors of an English courtroom, like the Ritz Hotel, are open to all." The fact is that it is now enormously costly to bring or to defend civil litigation in this country. Legal aid, which was once available to all save the very wealthy, hardly exists any longer for civil disputes. Our lawyers are among the most expensive in the world, albeit also among the most skilled. An hourly rate as high as £600 plus VAT is not uncommon.

Therefore, the advice I give to my friends, and which I have always applied to myself, is to avoid litigation like the plague. A bad peace is infinitely preferable to a good war in this area of life. Only those who make their living, like myself, from litigation, can understand how ruinously consuming of the client's time, money and nervous energy it is. This is at the very best. Courts are grim places. In these circumstances, alternative forms of dispute resolution such as arbitration will become increasingly popular.

In simple terms, a Beth Din arbitration works like this - you will first need to suggest it to your landlord. Arbitration cannot be imposed on a party against his will - it works by consent only.

You will, then, both have to sign a form consenting to arbitration by the London Beth Din - in practice, a panel of three dayanim. The cost is £2,000 per day (doubled for those who are not members of the United Synagogue). This is split between the parties.

The dayanim hear evidence, and will decide the case mainly according to Jewish law. This means the 16th-century Shulchan Aruch, amplified where necessary by English law for example if a modern concept such as car parking were not catered for in Jewish law. However horses might then serve just as well! Most of us would be surprised how relevant and comprehensive Jewish law still is, and how worldly-wise the dayanim can be.

Lawyers can appear, but this may detract from the primary purpose of cheapness and simplicity. While the jurisdiction of the English courts can never be ousted in fields such as family, children and divorce, which makes the Beth Din unsuitable in such cases, it has wide experience in all kinds of property, testamentary, investment, employment and commercial disputes. Once an award has been made, it will be speedily enforced, if not honoured, by a judgment of the English Court.

This principle of arbitration applies very widely. Some of the recent controversy surrounding Sharia law was in fact misplaced. Insofar as Muslims may want to have their civil disputes arbitrated here according to their own law, it is a right they already possess in English law, assuming they have arbitrators in whom their litigants are willing to repose confidence. An arbitrator can be literally anyone to whom the parties consent. He can apply any system of law to which they consent, or even none at all if they so prefer, simply deciding the case ex aequo et bono, which means according to his own notions of what is just and equitable. However, a recent reported case provides a salutary warning against selecting any arbitrator known personally to the parties. Two enormously rich but warring brothers appointed as their arbitrator a distinguished solicitor who had previously acted for both, and who in better days enjoyed the confidence of both. It did not take long before one brother sued the arbitrator himself when (as was surely not unforeseeable) he seemed to favour the other brother's case. As with all judges, such problems are best avoided by the arbitrator not being known personally to either side.

Joseph, for what my own view is worth, you and your landlord could actually do a lot worse nowadays than by resorting to the Beth Din.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC, of Ely Place Chambers, is a leading London barrister

Last updated: 3:00pm, May 27 2010