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Gripping stuff
Professional negligence claims can be damned
difficult, so is it asking too much to create a breed of
adjudicators capable of grasping the issues?
“The employer booted the administrator off
the job. The hob-nailed boot planted firmly in the trousers of a
professional man dents more than his pride”
If you and I took this very senior Scottish
judge into a corner, had a dram or two and spoke off the record, I
guess he would tell us that he thought adjudication was a bit
naff. At least, a bit naff when it comes to putting a professional
man's reputation on the line. Not that I have had an
off-the-record talk with this chap. No, no. I have only read his
leading judgment in Gillies Ramsey Diamond vs PJW Enterprises.
It was decided on 24 December 2003 in the Scottish Court of
Appeal. Reading between the lines I get the feeling that the judge
would like to have blown his top and thrown out the adjudication
against this firm of surveyors. He didn't. He upheld the
adjudicator's decision and enforced the award – and didn't like it
one jot.
Before I tell you the details of the case, let
me tell you about professional negligence claims. Call me
old-fashioned, but I remember the days when professionals were
regarded by most as the boss. They regarded themselves as the
boss, regarded themselves as right and expected all and sundry to
do it their way. "RIBA" stood for "Remember I'm the Bloody
Architect". My first inclination even now is to stand up when the
architect walks into the room. I resist, of course. So, when it
comes to bashing a professional for so-called negligence, there is
a sort of embarrassment.
The courts tread carefully, too. The judge at
first instance in Gillies Ramsey explained that the
question of whether a professional had failed in his duty to such
an extent that there had been professional negligence was an
"important and often difficult and delicate question". And bear in
mind, too, that there is a discrete area of law that deals with
professional negligence claims.
And that's what went wrong in the Gillies
Ramsey case. The Court of Appeal became suspicious that the
adjudicator had simply approached this area of law on the basis of
what I might call "an ordinary breach of contract". Or rather,
when reading the decision, the court couldn't fathom whether or
not the adjudicator had actually addressed the correct questions
for a professional negligence case. Here we are hanging out a
professional to dry, and all the time wondering if there was a
fair examination of his wrongs. The wrong was that even if the
tests for professional negligence had been put to the adjudicator,
did he understand them – and if so, did he apply them to the
facts?
What had happened on the job itself was that
the employer had faced several adjudications from the contractors.
Five, I think. That caused it to fork out cash. So he did what has
nowadays become more the norm: he turned on his professional
contract administrator and booted him off the job. The hob-nailed
boot planted firmly in the trousers of a professional man dents
slightly more than his pride. The client then brought on an
adjudicator to pursue for alleged negligence in running the
project. Most litigators would expect such an accusation to run to
an all-singing-all-dancing trial in court. Eyes would bulge at the
idea of a summary 28-day process. And yes, come day 28, the
professional got a poke in the eye from the adjudicator: he was
held liable in negligence.
It came to Scotland's Court of Appeal in the
face of the first instance judge expressing serious doubts about
the correctness of the decision, but enforcing nevertheless. The
more senior court scrutinised the award to find out what degree,
skill and care had been applied when testing for evidence. The
Lord Justice gained the impression that the adjudicator "had
little grasp of the subject" and "had taken a naive view that a
wrong decision constituted professional negligence". All this was
an error of law, which the court had to however uphold.
I am not one jot surprised if the everyday
adjudicator is not an expert on the law of professional
negligence. Nor do we have to train him to be such. But we do have
to teach, train, examine and certify a group of adjudicators for
these important, difficult and delicate disputes. Lord Justice
Clerk makes a fair point when he whispers over his wee dram: "The
risks of injustice that are inherent in the scheme, not least
those arising from the speed of the process, demand a high
standard of expertise from adjudicators and their advisers." The
new breed of adjudicator has to at once recognise the tests in law
and be familiar with the particular problems. No, he doesn't tell
the parties what to argue but he does, at least, need to recognise
the arguments put.
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
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