The Court of Appeal overturned the Technology and Construction Court judge's decision because he had found comprehensively against the claimants on the basis of a "conspiracy theory" entirely of his own concoction. The claimants were wholly ignorant of the judge's theory because throughout the 20-day trial he never once mentioned it. The Court of Appeal's decision records a miscarriage of justice that casts a shadow over the whole judicial process.
Mr Bingham suggests that all this can be attributed to "inadvertent" human error of the sort that could "just happen" to any tribunal, be they adjudicator, arbitrator or even, it seems, Tony Bingham. I would suggest that few tribunals would decide a dispute on a basis that had not been argued, had not been put to any of the witnesses and was unsupported by the evidence. Were they to consider such an unlikely course, even the humblest of adjudicators would be aware that natural justice requires him to give those affected the opportunity to be heard on the subject.
Mr Bingham also appears to rely upon the safety net of "the next tier of judges" to protect the victims of these lapses. This approach overlooks the fact that not everyone has a right of appeal, even if they have the funds and the stomach for another legal foray. Rights of appeal are limited in arbitration, even more so in adjudication. A successful appeal may not entirely redress the balance. Who will bear the costs of the five-week retrial of the Co-op's case?
To suggest that any tribunal could inadvertently lapse in this way serves only to undermine consumer confidence in the dispute resolution process. Tony Bingham should have more faith in our arbitrators and adjudicators.
Kim Franklin, chartered arbitrator, Crown Office Chambers, London