Dough well spent

If writing a bad review of a pizza restaurant can land you in court, just think what writing a review of a book by a leading construction judge does to the old ticker. Luckily, it’s a fabulous book – no, really

“All clients, builders and subcontractors are open at a moment’s notice to be required to adjudicate any dispute. Once the other party requires you to dance, you must dance”

Now then, Bingham, you’ll have to watch your ps and qs when writing this piece. Why? Because I am about to review a book. It’s written by one of the leading construction industry judges: Mr Justice Coulson. And, well, we don’t want to upset him, do we? I wouldn’t like to end up like the journalist who reviewed a pizza restaurant for The Irish Times and ended up being taken to court. “The review,” said the court, “did not commend the restaurant’s ambience. It did not praise the food. It did not compliment the service. It was not a flattering review.” A jury walloped the newspaper for £25,000 damages. But, last month, the Court of Appeal ordered a retrial, claiming that the jury that decided that the restaurant had been defamed had been misdirected by the trial judge.

And so to the book – Construction Adjudication, £145, Oxford University Press. It is ever so, ever so good. Phew! And I promise you this: if it was ever so bad or even a bit bad, I would tell you. But out of courtesy, I would have told the judge first. And then, out of grief at the news he and I would open a pizza parlour to make ends meet. Already, before the ink had even dried, I had the book quoted to me in two adjudications. “Look what the learned judge says in his learned book about …” and then learned thoughts were put before me. And what did I do about all that? Easy, I asked the other side if they agreed with the book. Guess what? They explained (it’s called “distinguishing”) how the facts of my case differed and the book didn’t apply. Ah, yes, that’s the lawyer’s art at work.

You can’t take part in the business of adjudication in building construction cases without this book. By “take part”, I mean something quite big. As soon as you become a constructor of a building in the UK you have agreed, however unwittingly, to adjudication by way of an act of parliament. That means all architects, engineers, quantity surveyors, project managers, consultants, as well as all clients, builders and subcontractors, are open at a moment’s notice to be required to adjudicate any dispute. Once the other party requires you to dance, you must dance. You can’t say no to adjudication.

It’s not all that long ago that Judge Coulson (now promoted to Mr Justice Coulson) was a barrister arguing cases for parties in adjudication. So he has seen the working side of the system. Now his day job includes deciding whether to enforce adjudicators’ decisions. So his book has real authority and experience. It is written, as you might expect, by reference to what previous cases have decided. So, a proposition or conundrum is discussed by reference to what the judges in the High Court and Court of Appeal and House of Lords have had to say. The author, thankfully, hasn’t held back on expressing a view on the views of others. Anyone appearing in front of him in an enforcement matter would be well advised to mug up on his book. Better still, read it before you begin any enforcement proceedings or before you reject an adjudicator’s binding decision.

A different forum for disputes is mediation. A first-class mediator, David Richbell, has written Mediation of Construction Disputes (£44.50, Blackwell). The author, I confess, is a favourite of mine. Being a one-time QS, he understands how the construction industry operates. He was in at the beginning of mediation in its modern form in 1990. The book shows us how he manages mediation. It is a useful insight. Important for knowing how a neutral third party sees his role and how he sees each party’s role. The process is explained in four stages: preparing, presenting, negotiating and concluding. The theme is simply summed up when the author says his job is to “give the parties their best shot at doing a deal”.

Mediation has developed strands and differing ideas over the years on “getting to yes”. There is no one system that always works. Let’s hear more from other mediators on their system, or shall we just do it as we see best on the day?

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: 37164 Biggleswade

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