|
Get real, m'lud
Adjudicating in 28 days is a job for Superman.
Restricting phone calls would be like helping him with kryptonite
"On Day 1 of 28, the "referral" bundle turns up. It is supposed to "refer" the crystallised dispute. A judge seeing these bundles would go spare"
Do you know why new adjudication is working so
fantastically well? It's the way we do it. In 28 days flat we
adjudicators crash and bang and wallop our way to the truth and
law of the matter. Then, when all parties and the adjudicator are
exhausted, we phone and fax and email each other right up to the
last minute of the last hour of the 28th day. It is the most
ball-breaking business I have ever done, and the most exciting.
It's the best thing in building.
And the way we do it is revolutionary. From the
very beginning we wholly accepted the rightness of phoning or
meeting or corresponding with the parties and anyone else involved
one to one. The golden thread to this has always been telling the
parties what was said. Nothing relevant is private. The Official
Referees Solicitors Association saw how sound this practice was.
Its own rules for adjudication say: "The adjudicator, if he
thinks fit, may meet and otherwise communicate with one party
without the presence of other parties."
Of course; it's the 28 days that demands
that dynamic, no-frills approach. The association went on to
demand "fairness and impartiality and the right of each party
to be given a reasonable opportunity, in the light of the
timetable, of putting his case and dealing with that of his
opponents".
Now then, what's all this fuss about Discain
vs Opecprime? (number
57 in our series.) The judge said: "There is no reason in
law why an adjudicator should not have telephone conversations
with individual parties to the adjudication."
The real trouble in Discain is that it is plain
as a pikestaff that the judge is very uncomfortable with this
one-to-one investigation. He says: "It would make life a great deal easier
for the adjudicator if he declined to do so." He steers the
adjudicator to limit one-to-one telephone calls to those of a
purely administrative nature; and he even prefers that those be
made by a secretary.
The theory is great; the reality is different.
On Day One of 28, the "referral" bundle turns up. It is supposed to "refer" the
crystallised dispute. A judge seeing these bundles would go spare.
This isn't a bundle of snazzy pleadings; this
isn't a bundle of crisp witness statements, or an expert report.
This is an industry bundle by non-lawyers. The only pleading is
that the claiming party begs the adjudicator to "bloody well
sort out the row and get me my money". It is as though a
builder turned up in court one morning and said to the judge:
"Go on guv, get stuck into that." And the judge whips
off his wig and gown to reveal the S logo on his vest and slips
his red undies over his trousers. The adjudicator is Superman. His
clerk is Lois Lane (but she only types). Superman asks the
questions.
Meanwhile, the other party has taken a point on
jurisdiction. He tells the adjudication to go away, and then
bombards them with Lever Arch files in case they don't. Those
files will have umpteen gaps and will fly off on tangents. The
adjudicator picks up the phone and sorts out what the hell is
really being argued for. The phoning goes on and on.
At day 20 and their wit's end, the adjudicator
might get the parties around a table. Then someone can't come,
another must leave early, and someone else is having a baby. The
so-called "hearing" is just a row and little is
achieved. Much better to pick off the parties one-to-one. It
works, damn it.
Even on Day 28 there is still a question or
four swimming around in the adjudicator's mind. The fax is at meltdown, but the parties are
trying to cram more arguments into it. Then crash, bang, out comes
the decision. These adjudicators have really got to know their
construction law and how to dig for evidence.
Thirty years ago Lord Denning gave the guidance
I like best of all when explaining the work of any investigation:
"Before they condemn or criticise a man, they must give him a
fair opportunity for correcting or contradicting what is said
against him. They need not quote chapter and verse. An outline of
the charge will usually suffice." If you can give all the
chapters and all the verse in this 28-day timetable you are
Superman. Right, Lois?
Readers are invited to forward recent judgments for reporting
in this column (with full acknowledgement) to: Tony Bingham,
3 Paper Buildings, Temple, London EC4Y 7EU.
DX:007I LDE
Top
|
