How to be a good dog

Let me tell you what happens in when I’m the adjudicator and one party is a LIP or a BIP or a SCIP. I treat the Litigant in Person much the same as a Builder in Person and a Subcontract Plasterer in Person. I bite my tongue. But my eyes are wide open. I pause. I take a breath. I remind myself that my job as an adjudicator is to be neutral. True, I am to hold the ring. But I am an impartial ring holder. I repeat several times, “I must be fair”. I repeat several times, “I am the referee, the umpire, not a player”.

What’s up? It’s all about inequality of arms. It’s all about what happens when the two parties are not on an equal footing. You know what I mean. That one-man band subby plays Dispute! with the multinational main contractor. And the big boy engages top lawyers and experts and consultants.

Did you feel a fraction uncomfortable just then? Did the odd hackle prick up? Are you already on the side of the little fellah or are you a big boy and getting narked by the prejudice in favour of the underdog? When Mr One-Man-Band contractor plays a first division commercial team, everyone is entitled to this guarantee … a neutral tribunal.

Now let me tell you what the big fellah does that makes the parties look unequal. He takes advice! And the adviser says: begin by searching out your rights, your duties, your promises under the contract. But the little fellah doesn’t do this. He hasn’t got the money to buy all that expertise. So he comes to the dispute with claims but doesn’t point to the contractual terms because he doesn’t know where to look for such things. LIP, BIP and SCIP bring a box of lever arch files and say to the adjudicator “okay pal, there’s all the papers, get stuck in”. The big fellah will talk about “breach”, talk about “damages”, talk about “causation”. He points to disputed facts and produces evidence. He even finds information to corroborate evidence. He proves a loss, proves a turn of events, and proves his damages. He even produces evidence to rebut the claims of his opponent. Yes, yes he got a lawyer or consultant to do all this and yes he has to pay for it. Is that unfair?

So, what does the adjudicator, or arbitrator or any tribunal do about “holding the ring”, the “inequality of arms” or “not being on an equal footing”? Be a watchdog. Be a procedural watchdog. That is not the same as making a case for the small bloke. Instead it is safeguarding from unfairness … and speaking up to halt unfairness. So, if the fully represented party introduces arguments in the middle of the adjudication that appear unfair to the process, the adjudicator speaks up. And if a wad of new evidence is thumped on the desk, the adjudicator should ask if it is fair that it should.

If one side can’t find the contractual promises it is not fair to find the promises for them

Say an expert report suddenly comes in and say it flummoxes LIP, BIP or SCIP; I would speak up. I would ask what a far more competent opponent would have done in these circumstances and reflect on the inequality of arms. No, I am not “making a case” for the little fellah. I am only watchdogging. Similarly if there were a meeting and the lawyer for the big outfit made a submission on the law that flew right over his opponent’s head, my watchdog would be out of its kennel. No, not to do the arguing for the amateur, not to become a player, but to try to see if a procedure could be arranged so that the surprise submission could be adequately replied to in the time allowed.

Adjudication is a judicial process. The adjudicator is neutral. If he witnesses a foul, he blows the whistle. But he is wholly bound to be fair to both sides. If one side doesn’t come with evidence, it is not fair to tell it where to get it or how to prove its case. If one side can’t find the contractual promises it is not fair to find the promises for them. If one side can’t show an extension of time, it is unfair to do it for them. If one side can’t prove the variation, it is unfair to do it for them.

Inequality of arms isn’t an invitation to the adjudicator to redress the balance. How would you feel if the adjudicator became a second opponent? The neutral dispute decider can only dig as far as permitted by the adjudication rules.

Tony Bingham is a barrister and arbitrator