Nick Henchie (20 May, page 39) suggests Tony Bingham’s proposed “arbitral investigator” may be possible but is unlikely to succeed as it requires consent.
This fails to surprise me. Our legal system proclaims justice as all-important, but still relies on an adversarial system. I struggle to see how a system that (on the face of it) favours the party with the deepest pockets and who can afford the best legal advice – someone who can “win an argument” (or come up with the best excuses) – represents true justice.
I recall going through my divorce. My ex-wife’s solicitor (A) asked for the moon. Mine (B) offered a piece of green cheese. A then reduced the demands to half the moon. B upped the offer to two pieces of green cheese, and so on; each time clocking up costs. Both knew what a fair offer was; B told me what to expect at the outset and A came up with something pretty quickly, when pressed by my ex to quit the charades. We settled. My legal bill: a few hundred quid. No doubt both were trying to get a “better deal” for their client. If they had, would that have been fair and represented justice? No doubt we all know someone who lost out in such circumstances,
due to poor legal advice, lack of emotional resolve to continue fighting, misrepresentation/ deceit/big fat porkies.
Tony Bingham’s idea appears to be a good one. In fact, why not enhance it and replace the Technology and Construction Court’s adversarial system with an “arbitral investigators” system?
Just a thought.
Arthur Gilbert, Network Rail