So, the question arises, does the construction industry have claims management companies? The answer is "yes, you bet". But ask whether they are like the rest of the cash-hungry. ambulance-chasing claims consultants out there, and the answer is "no". They used to be, but not now. And in a minute, I'll tell you why.
Claims management companies are currently in the news because something called The Better Regulation Task Force wants them to be – yes, you guessed it – regulated. It is recommending to Tony Blair and John Prescott that the Claims Standards Federation put before the Office of Fair Trading a code of practice to regulate claims management companies. If that code doesn't do the trick, it wants government to introduce an act of parliament.
Here we go again. Regulate, regulate, regulate. But hell's bells, regulation is the answer of last resort. It has Orwellian Thought Police written all over it. Regulate means throttle. There is no need.
Because the Better Regulation Task Force hasn't realised that what the construction industry did to create complete respectability in its claims management sector. Companies swapped from poachers to gamekeepers. Most claims people became "deciders of claims". In other words, they became the people who adjudicated on the claims advanced by other claimsters.
It goes too far to say regulating is akin to bullying. But thumping people with restrictions backed up by disciplinary tribunals is a tad old-fashioned
The effect has been astonishing. Every single claims bod is now fanatical about their upstanding reputation. Claims people have learned a new culture from their six years of being adjudicators. Remember, construction claims dispute deciders have been given the responsibility to hold the ring in all disputes, whether between subby and builder, builder and employer or employer and architect. Adjudicators are anxious to be scrupulously fair when dealing with the disputants, and overwhelmingly cautious about evidence, fact and law. Nooks and crannies of the law of contract are researched and fathomed, then flood back into the arena of claims management. Respectable adjudicators make respectable claims managers.
Some years ago on this page, heaven knows why, I was twittering on about bullying. A school had come up with an idea. They gave out blue blazers to playground monitors. These monitors included some bullies. The effect was immediate. The blue-coated bullies stopped bullying. They became guardians of the other children. From then on, there was no need to scold or chastise or discipline the school bully. The lad was cleverly converted without regulation or punishment into an enthusiastic and popular custodian. In the construction industry we used to have awful half-baked claims wallahs; that is, until we invented the blue blazer of adjudication.
In the beginning we had some real bloopers and blunders. But come with me to a meeting of the Adjudication Society, or the Society of Construction Law and meet and listen and watch the modern adjudicator. He listens to law lectures from top solicitors and barristers, takes on board the latest cases, takes part in discussions and ponders real-life difficulties in law and procedure.
The Better Regulation Task Force could do us all a favour by urging Blair and Prescott not to regulate at all. Instead, they could serve the public by widening the use of construction adjudication. Wherever you find claims managers introduce "adjudication". Lo, the claimster becomes the decider.