The promotional website for adjudicators’ and arbitrators’ services is now the subject of an independent inquiry over its alleged links to two senior RICS staff, but much about it is still shrouded in mystery - leaving many in the dispute-resolution community more concerned than ever. Building reports

Over the summer and autumn, Tony Bingham took part in an extraordinary email exchange. Bingham - a Building columnist for more than 20 years who makes his living as a barrister, arbitrator and adjudicator - was in correspondence with a now notorious website which promoted the services of those like him who are involved in resolving construction and property disputes,

From August through to October, Bingham repeatedly asked a simple question which was never answered - who are you?

As Building revealed last week, the RICS has ordered independent law firm Field Fisher Waterhouse to carry out an inquiry into and its links with two senior and long-serving former RICS members of staff. The RICS’ own internal investigation saw the two - head of operations Wajid Khan and head of quality Carol Goodall - last month leave its dispute resolution service (DRS) over a conflict of interest to do with their alleged links to the now defunct site, and their alleged unauthorised use of RICS’ knowledge and information.

These events have left the close-knit world of arbitration and adjudication - people who deal with controversy every day - on tenterhooks, particularly since it emerged that the RICS has alerted the government to the unfolding situation. So what does this community make of what is going on?

‘A gap in the market’

Back in September 2010, Bingham had become aware of and - spotting a commercial opportunity - had emailed the site to put himself forward as a professional for the site to link to. Apart from picking up the odd bit of work as a result, he heard little more about until he was contacted in July this year by RICS solicitor Antonia Hatton, who asked him about his connection to the site and even whether he had invented it. Hatton works for the RICS’ regulatory arm, which is investigating member involvement in the website.

It was at this point that Bingham became suspicious and decided to mount his own enquiries, emailing the site and asking a staff member calling herself Kate Moore what the organisation’s address and telephone number were. Over the course of more than a dozen impeccably polite emails between the two, Moore explained that she ran with her partner Simon and that they had “spotted a gap in the market” for a website providing detailed information on alternative dispute resolution [ADR] in one place.

“There is no particular secret about who we are,” she wrote on 9 August. “I am from a marketing background and was involved in a building dispute a few years ago. I was frustrated by the lack of information about how it could be resolved, what were the differences in the various forms of ADR and who could represent me.”
Moore claimed the website did not charge dispute resolvers to include their contact details or those looking for these details. But she steadfastly refused to divulge her own, saying that, “as with many internet sites”, she did not wish to provide a telephone service or respond to letters.

Bingham, who was concerned about his association with an operation under scrutiny that he knew next to nothing about, was so worried that he asked to be removed from the site, eventually threatening to charge it £100 a week until he was.

“There is an implied association with those whose profile appears on the site,” he wrote on 10 August. ” I/we know absolutely nothing about you. That cannot be a sound ‘fit’ for those of us deciding disputes.”

Nobody at the RICS has been able to track down Kate Moore and Bingham cannot be sure whether the name was simply a pseudonym. Another Kate Moore meanwhile - a chartered surveyor working for Eddisons in Leeds who had nothing to do with the website - was contacted by Hatton and forced to explain that she had never heard of it.

The RICS connection

Looking back on the episode this week, Bingham says his fears about have only deepened since. He became particularly concerned after learning of its alleged connection to Khan and Goodall - a connection that Bingham, who was on first-name terms with both, calls “astonishing”.

“We adjudicators and arbitrators had a lot of connection to these two people and they are the last people I could think of who would do anything to hurt the RICS,” he says. “The respect they had from arbitrators and adjudicators was seen as faultless. If either of these people had asked for a reference, I would have been first in line.”

Most observers agree that the RICS - under the leadership of chief executive Sean Tompkins - has moved swiftly to investigate and act on that internal investigation. It should also not be forgotten that it was the RICS itself that first publicised the “improper behaviour” it had discovered in November.

But despite its insistence that it is constrained in discussing the matter due to legal reasons, the RICS’ refusal to elaborate has dismayed the likes of Bingham. This is due to the fact that many adjudicators and arbitrators - who are appointed to cases through the DRS - feel tainted by anything that taints its reputation.

“We are entitled to fret,” Bingham says. “We are appointed to perform a role on a judicial tribunal and are involved in tasks enforceable in the High Court. It is crucial that the reputation of the entire system, including the appointing body, is unblemished. I feel seriously linked to this and I think I’m entitled to know what has gone on.”

This concern - that the alleged wrongdoing at the RICS might extend beyond - is shared by others, such as QS and adjudicator Peter Morton, who is calling for greater transparency on how the DRS appoints adjudicators.

“This [investigation] is said to involve people closely involved with previous appointments that have been made by the RICS dispute resolution service,” he says. “At the moment, it is not possible for anyone - even RICS panel adjudicators - to find out which adjudicators or arbitrators have which appointments.

“Nobody knows the exact system of appointments and therefore whether the distribution of appointments has been even. One of the ways that [the RICS] could answer this is through greater transparency.”

Whatever the truth, the experts who help resolve construction and property disputes will have to wait to discover it. As Field Fisher Waterhouse conducts its inquiry, the RICS’ regulatory arm says it is “working to ascertain whether there was any member involvement”, while reiterating that it will not comment on the ongoing investigation to avoid “compromising the process” (see left).

And with having been shut down and Khan and Goodall nowhere to be seen, we have yet to hear anything at all from those at the centre of these strange events.

What the RICS says

“In the spirit of transparency we openly publicised details of potential staff misconduct in our Dispute Resolution Service in November. We are continuing to investigate the implications of this, and our independent regulatory arm is working to ascertain whether there was any member involvement. At present, we have no reason to suspect any individual members of wrongdoing in relation to our investigation. RICS has also informed relevant government authorities. It is not our practice to comment on ongoing investigations as this could compromise the process.”

What does the DRS do?

The 30-year-old RICS dispute resolution service (DRS) is the world’s largest provider of alternative dispute resolution services to the construction and property industries, appointing about 5,000 dispute resolvers a year. ADR is seen as a cheaper and quicker means of resolving conflict than going to court, with the DRS nominating adjudicators and arbitrators from its various panels of candidates. The RICS receives a fee of £382 per adjudicator placement, making the DRS a significant source of income.

Adjudication is a contractual process in which an adjudicator assesses the evidence and makes a decision according to a strict timetable. This is binding until finally decided in litigation, arbitration or negotiation.