The land of make-believe

The building industry should sit up and take notice of the McCartney/Mills divorce settlement: there are some valuable lessons to be learned, particularly when it comes to putting your side of the story to the court

“It wouldn’t surprise me if Heather Mills did not utter a single fib. Time without number I hear nonsense from parties, but so often they believe what they say”

Goodness knows why I came to read the court judgment in the Sir Paul McCartney and Heather Mills divorce settlement. Maybe the words “claim”, then “compensation” and “loss and expense” began to jump out. Familiar words in our building industry disputomania business. I began to take even more interest when I saw the words “head on conflict” referring to the evidence of McCartney and the evidence of Mills.

Then the judge began to talk about the wife’s case as to her wealth being “wholly exaggerated” and elsewhere he said “the facts as I find them to be do not support the wife’s case”. What emerged from the judgment was the conclusion that the judge was grappling with “make-believe”. And do you know, if you are in a building industry dispute and find yourself explaining your case to a building industry adjudicator or arbitrator or judge, you would be well advised to reflect on “make-believe”.

And reflect on this please. The person deciding your dispute is ever so reliant on you. When I say reliant on you I mean reliant on the witnesses and reliant on the representative. The dispute decider has dependence on, even trust in, those who come to tell their story. Smack bang on the front of this McCartney judgment, this High Court judge explains that there is “head on conflict of evidence” in this case.

It’s quite normal for one witness to swear blind to an event happening and another to swear it never did. Dispute deciders get used to that. But the judge has to form impressions of people from their statements. Of the McCartneys, he said: “The husband’s evidence was, in my judgement, balanced. He expressed himself moderately, though at times with justifiable irritation, if not anger. He was consistent, accurate and honest. But … I cannot say the same about the wife. Having watched and listened to her give evidence, having studied the documents, and having given in her favour every allowance for the enormous strain she must have been under, I am driven to the conclusion that much of her evidence … was not just inconsistent and inaccurate, but also less than candid. Overall she was a less than impressive witness.”

See what I mean about “reliant”? When the adjudicator, arbitrator, or judge in a building dispute loses confidence in a party, need I say more? It’s ever so important not to spin a daft line, or pull a fast one.

To be fair, “make-believe” is frequently not about dishonesty. It wouldn’t surprise me if Heather Mills did not utter a single fib. Time without number, I hear nonsense on stilts from parties and/or their representatives. But so often they actually believe what they say.

Building disputes are sometimes founded on make-believe. Stories are built on absolute conviction about the “rightness” of a position. Subcontractors, for example, have been told so many times that they “get screwed” by main contractors that they believe it. And as the dispute drags on and as stories become rehearsed and rehearsed again, even the most unsupportable harebrained notions become firm conviction and, dammit, “the truth”. Then when it comes to a dispute decider it has all the ingredients of a whopping lie. It’s not, it’s self-deception.

Whether a story is a lie or make-believe is all very interesting, but the job of the dispute decider is to merely ask which story is more convincing. The judge in the McCartney case said Mills had over-egged the pudding and “thus deprives the court of any sensible assistance”. There is a good tip. That claim of yours for loss and expense or set-off which is over-egged contains a try-on and, if spotted by the adjudicator or arbitrator, will cause a crisis of confidence.

Just one tail-piece: while I was penning this article, a leading adjudicator phoned.

“Have you read the McCartney judgment?”

“Why?”

“Because it contains real good guidance for adjudicators.”

Good guidance too for the parties and their representatives. Beware make-believe.

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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