The tale of the passenger who ran away from a car wreck has much to teach the construction industry about preparing for its own little mishaps
Lawrence Davies, partner in Pinsent Masons’ UK Construction Group, has come up with a bright idea. The firm has teamed up with the University of the West of England to offer a short course on how to be an effective party to an adjudication. But will he remember the “six Ps”?
The course is over five separate days; it is up to you whether you choose one or all five. It is face-to-face in Bristol. Anything or anyone who helps referring and responding parties to make a better fist of making life a tad more tolerable for us adjudicators gets the thumbs up from me. I bet Mr Davies feels that way too; he is also an adjudicator. I can’t help wondering if he is perplexed by some of the endeavours of referring and responding parties when doing their stuff in front of him. Yes, yes, but will he tell the candidates on the course about the six Ps?
Now let me tell you about a bloke called Dean Cole. He is not an adjudicator, nor a representative, nor the referring party, nor the responding party. He he has never heard of adjudication. He is the accused in the dock. Mr Cole was an occupant of a car being driven dangerously. The car smacked into another car and that one spun into the path of a truck. Mayhem. Mr Cole ran off. At his trial in the crown court (I am coming to the six Ps, I promise) his evidence to the jury was that he did run off and so did his mate, the driver. So he, said his barrister, was merely a victim and ought to be acquitted. The jury replied that he was guilty.
Now then, that’s all very well. The snag is that the experienced crown court judge in Northampton seems not to have taken a shine to either Mr Cole or his young lady barrister. It doesn’t go too far to suggest that the judge was either convinced that Mr Cole was ripe for conviction or was having an off day. For example, he interrupted the witnesses while giving evidence, plainly disbelieved the truck driver when saying there were indeed two people in the car and expressed hostility towards Mr Cole’s barrister. In fact, he didn’t allow her to develop her arguments, and oh dear, here come the six Ps. The judge’s bad day at the office reached its denouement with the note he passed to the lady barrister. It said: “Prior Planning Prevents Piss Poor Performance.” Oh dear. That was enough to send the barrister to the Court of Appeal. Lord Justice Latham said there was no indication as to whether or not the note was intended to be humorous or whether it was just plain rude. Anyway, Mr Cole had his conviction quashed. Nor would that court order a retrial.
The judge’s bad day at the office reached its denouement with the note he passed to the lady barrister. It said: ‘Prior Planning Prevents Piss Poor Performance’
Heaven forfend that the judge’s gaff should be thought by you to be anything but wrong and right. I bet he will cringe privately about that moment: he was wrong. But he was so right, too. No matter whether it is a criminal trial or a building industry adjudication, want of prior planning sticks out like a sore thumb. And it’s not just those who begin the adjudication that make a poor performance; it’s also the responding party. For heaven’s sake, after 10 years of adjudication hasn’t it sunk in that any off-hand, arbitrary, weasel-worded approach to complaints is more than likely see the complainer call for an adjudicator? Don’t tell me that you can’t see it coming. That, too, is poor planning.
Let me tell you what prior planning means in adjudication. On the day you, as payer, calculate that the next cheque to the contractor is lower than it has applied for, you begin planning for an adjudication. On the day the contractor says it is carrying out a variation and you say “this is not a variation at all”, that’s when you begin planning. On the day the programme starts to get out of shape, on the day there is talk of an extension, on the day there is talk of disruptive working, on the day there is talk of loss and expense, on the day the lads on site get fed up, on the day when you start rowing, that’s when you begin planning for an adjudication. Yes, I know nobody has uttered the word “adjudicate” yet. But you know full well you have a dispute, so it’s no good complaining that you’ve been ambushed when the adjudication begins.
It was Baden Powell, founder of the scouts and the Institute for Judges with a Sense of Humour, who coined the phrase “Be prepared”. Well, actually, he passed a note saying: “Remember the six Ps”.
Hasn’t it sunk in that any off-hand, arbitrary, weasel-worded approach to complaints is likely to see the complainer call for an adjudicator?
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple