The Americans call it sandbagging, we call it ambushing but either way it's an annoying and counterproductive way of trying to straighten out a problem
"Sandbagging". I confess the word is new to me. But I recognise the idea alright. The word dropped from the lips of an American lawyer in one of the talks at that Dispute Resolution Board Foundation conference in Budapest I told you about last week. Over here, we call it "the ambush", except that sandbagging is a tad more subtle. And before I go any further, let me warn you that anyone deciding disputes can become a smidgen disappointed by ambushes, by sandbaggers.
I will come to ambushes in adjudication in a minute. But first, let's focus on the footwork before an adjudication starts. Many a dispute is rooted in "the old pals act". This is an ancient act of parliament that says people should be nice to each other, but watch out for the bloke who takes advantage of your co-operation. For example, I'm sure you've all heard the other bloke say, "Yes I know you say you are owed more money - let's sort it out later." And because you are within the remit of the old pals act, you fall for it. Months later, the enthusiasm to pay has waned. The job is finished, you are not important any more; you are sandbagged.
Sandbaggers love to lay foundations, too. Not the concrete sort, but their exact opposite: neat plausible letters full of exaggeration sent in the hope of being able to produce them in an adjudication two years later. Snag is, an experienced tribunal can often smell specious letters from four miles away.
The obvious sandbagger is the undervaluing certifier. You know all about this game, so I needn't say much. Just this: the likelihood of all these letters and manoeuvres coming to a professional dispute decider is now very high. And when that happens, sandbaggers will lose.
So, let's turn to sandbagging in adjudication. The referring party has an insatiable appetite to ambush. So does the responding party and, by the way, so do some adjudicators.
The parties keep on trying to trap, ambush, sandbag each other. While you two are hurling new arguments, I can’t start to adjudicate your case
Why do referring parties keep their case up their sleeve? Then, wallop, in comes a notice of adjudication to the other party followed by a beautifully crafted referral, complete with supporting files of schedules and copy correspondence, bells, whistles and flutes.
"Unfair," shouts the responding party. And if it really is an unfair referral, the adjudicator must show a yellow card. That yellow card invites the parties to agree a timetable that allows enough time to deal fairly with all the new arguments in the referral. If the parties won't agree a fair timetable, out comes the red card. The adjudicator resigns. He sends himself to the changing rooms.
As for responding sandbaggers, don't tell me that you can ambush the referring party with any response. The test is fairness. New arguments in the response, which cannot be properly investigated, are not on. Yellow card again. And if no special timetable can be agreed, show the new stuff that red card. Nobody will criticise the adjudicator if they prevent unfairness.
The 28-day adjudication is not the time set down for the parties to tell each other what their gripe is. It's not in those 28 days that A and B start revealing their evidence, their expert reports, their legal propositions. The 28 days do not "belong" to the parties, they belong to the adjudicator. Yet the parties keep on trying to trap, ambush, sandbag each other. While you two are using my time as adjudicator to hurl new arguments, I can't even start to adjudicate your case. So, either do your arguing before coming to adjudication or risk having your new material thrown out because there is no dispute about that new material, or no time to fairly canvass new notions, new arguments. The yell of "unfair" has a real effect because of the 28 days. No one should be taken by surprise by a referral bundle. The whole lot ought to be served well before the adjudication begins, complete with a warning that this is what will soon go to a referee.
As for sandbagger adjudicators, ask as many questions as you like about the materials put. But stop ambushing the parties with fancy arguments of your own. Some adjudicators love to show off, to think of arguments that "nobody but clever me" has spotted. They really are a nuisance.
Tony Bingham is a barrister and arbitrator specialising in construction, email@example.com.