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Are you listening?
Put four fabulous speakers in a room and get some
of the country’s top adjudicators to sit down in front of them.
The result is a fascinating conference we can all learn from
“Sir Anthony Evans is an international
arbitrator. All those years of experience, all those cases and
his message was simple: settle. You won’t, of course”
The number of adjudicator appointments made
last year by the Association of Independent Construction
Adjudicators (AICA) went up 55%. I went along to listen to their
conference the other day. Four super speakers and a room full of
some of the leading construction adjudicators in the land.
If ever you get a chance to listen to lawyer
Derek Roebuck, take it. He is editor of the International
Journal of Arbitration and was the first speaker. His talk about
disputes was Insights from History: Relevant Now? And
while he talked, I listened. But I did something else, too: I
looked at the other listeners. Everyone was listening. The
speaker coaxed us busy dispute folk to back off from the
coalface for a moment, urged us to recognise that the way we
think is neither accidental nor fixed by the laws of nature. We
make assumptions that we have been taught. And then we get
locked into our assumptions.
Roebuck makes you think and so does his new
book, Early English Arbitration. And you will say, as I
did, why on earth should I read a story of how disputes were
managed in England from the earliest of times to 1154 AD? Well,
there’s a simple answer: to increase understanding and do the
job better. “It would be an odd scholar,” says Roebuck, “for
whom greater knowledge did not increase humility.” I like that.
We were all brought back to the coalface by
speaker Neill Stansbury. And I watched the listeners: nobody
dozed, but instead eyes widened and bottoms and feet wriggled.
His topic was construction industry crime; we listened to him
easing himself into what you and I call “white collar crime”.
Then he moved up a gear by ever so smoothly by giving ordinary
examples of how construction folk can find themselves up to
their neck in prison buildings. No, not building them; living in
them. And here in the room were those adjudicators who are, on
occasion, told porky pies by those who are indifferent as to
whether their claims are only half true. Stansbury was urging us
to detect folk who are rubbing up against fraud, recognise it as
fraud and report it as fraud.
Barrister Sean Brannigan explained two
aspects of the recent adjudication decision in Cantillon
vs Urvasco. The High Court judge in the case explained
that it was open to either party to deploy any new argument for
or against the disrupted claim in an adjudication. The big snag
is that we adjudicators have been taught that you can’t squeeze
a quart into a pint pot. Bring gallons of arguments if you like,
matched only with a willingness to give gallons of time to the
other side to answer – as well as a willingness to give oodles
of time to the adjudicator to do the judging.
Brannigan’s then went on to describe an
attractive move by the learned judge, who did a bit of filleting
by saying it was okay to sever the good parts of an
adjudicator’s award from the bad – it was a sort of survival
tactic. Brannigan must be right when he says that if the bad
bits are bad because they exhibit bias, then the whole lot must
be struck down. But there is a more subtle snag, says Brannigan.
Severability might ignore the fact that some (he added “quite a
few”) adjudicators approach the time-limited task before them by
seeking to ensure that the dispute is “resolved in a manner
which is fair overall”. In short, compile a decision that is
“broad-brush”. If Brannigan is right, then severability is
tricky, even dangerous. The enemy of a well-thought-through set
of quarrels to be adjudicated is time. Rush it, deprive the
dispute decider of time – and you’ll get “broad-brush”. So bring
lots of new arguments, cramp the opponent and adjudicator for
time and get the brush off – that’s the “broad brush” approach.
My favourite speaker of the day was Sir
Anthony Evans, erstwhile Court of Appeal judge, now
international arbitrator. His message was simple. Negotiate a
settlement. All that experience, all those years, all those
cases and he tells you: settle. You won’t, of course; it’s been
this way since 1154.
This AICA mini-conference was full of
enthusiasm and a willingness to learn and share. Well done,
everyone who took part.
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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