More people than ever are choosing to conduct their own construction case without using a lawyer. Fine, but it calls for a more hands-on approach from the referee
Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so. It is, therefore, hugely unfortunate that the appeal here is launched essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendant to call live evidence. The appeal is based upon that alleged procedural impropriety. Hmmm! Let me tell you that I have done the same on lots of occasions. “We want a live hearing,” says one party to me. “No need,” I reply. In Judge Thornton’s case a re-trial has been ordered.
Why the short straw? It’s because the dispute is between two businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this … and the short straw was drawn by well-known construction industry Judge Anthony Thornton QC. The senior Court of Appeal judge said: “What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants-in-person.”
It is not that Mr Builder is not welcome to represent himself. No, but it requires the arbitrator or the adjudicator to wear his kid gloves and look out for walking on thin ice
Oh, and let me add my tuppenceworth: they are exactly the same difficulties encountered by construction industry arbitrators and adjudicators. The self-represented party who comes without a lawyer or experienced claims consultant makes the dispute decider’s job different. Notice I said different. It is not that Mr Builder himself or Mr Subcontractor or Mr Architect is not welcome to represent himself or his company. No, but it requires the arbitrator or the adjudicator to wear his kid gloves and look out for walking on thin ice. And if a top quality judge like Anthony Thornton can get caught out for breach of natural justice, it’s a sure bet people like me and my fellow arbitrators and adjudicators can too.
Now then, if you are a constructor, architect, engineer and you want to conduct your own case without using a lawyer or dispute consultant, you are called a litigant-in-person - or LIP. These days many more folk are willing to run their own case. That’s probably because they can’t afford us lawyers or, in construction, the constructor knows a damn sight more about constructing than any lawyer and becomes convinced he can run it himself. And let’s be plain, if the case is about putter-uppering, you are absolutely right. Do please then come to adjudication at least without lawyers: come as you are. The snag in building buildings is what I call “the other 50%”. Half the business of buildings is about building the blessed thing. The other half is about the bumf that I make a living from, and half our industry loves too - it’s the contractual playground: Buildopoly, where we shuffle dice and move around the game board buying and trading or developing houses, hotels, we pick up cards called Chance, others called Community Chest; you can even “go to jail”! No one reads the game’s rules until a dispute breaks out. And let me be ever so plain: you LIPs are very iffy at “the other 50%”.
And when you LIPs represent yourselves in adjudication, bear in mind that the dispute, time and again, will require a real knowledge of legal bumf. And it’s time I guess for us dispute referees to treat you differently. What I mean is that if two lawyers turn up to debate a case in front of me, I let them damn well get on with it. And if one of them runs a rotten case and loses, so be it. But what’s to be done with you LIPs?
Half the business of buildings is about building the blessed thing. The other half is about the bumf that I make a living from - the contractual playground
My suggestion is that we referees inject fairness into the process. It may, for example, be necessary to invite the LIP to take legal advice on this or that element of law; take advice on the method he is or is not using to prove his case, or indicate that unless he does this or that, he will lose. The referee may need to give more time, be patient, be ready to send the LIP away to improve their position. None of this points to the referee becoming the advocate. Thorough questioning is likely necessary and right. Then the bottom line is to somehow be proportionate in what expense this “inquisitorial” approach does to
the sums in dispute.The key for the referee is probably to explain and simplify the board game and manage sympathetically, but the ref is not there to make one side or the other win. True, it’s more hands on but the hands are not there to cuddle.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple