Let me tell you some things about people who decide construction disputes. First, they are human; that characteristic alone will give you a great big hint about the likelihood of a mistake. Next, it makes the person making the decisions a damn sight more thoughtful if he has to publish his thinking process. Furthermore, it is absolutely true to say that the processes of writing out a decision makes someone think again. (And, I will admit to this: it never surprises me to find that in the course of writing down my own analysis of the facts, or law, for an arbitration award, that I change my mind.) And, by the way, when it comes to all these new construction industry adjudicators, do ask them for reasons. A lot are new to the burden of deciding disputes; it will be a shock to them to have to explain their reasons. And if those reasons are insane, report it to the appointing body. It is time to weed out the dafties.
Where was I? Ah yes, the Flannery case. It was a surveyor's negligence allegation. Apparently, a Mr Haining surveyed a house and reported under the heading of "heave, landslip or settlement" that no undue hazards were apparent. So his client brought the house. Not long afterwards he needed to sell up. The same surveying firm came along for the potential purchasers. The snag was that it was a different surveyor. Guess what? His report directly contradicted what his colleague had said a year earlier. Oh dear.
Litigation got under way. The trial lasted eight days. That is a surprising time and probably racked up huge costs. Then the judge sensibly closed the case and went away for six weeks to consider all the evidence and write out his decision. It ran to 29 pages. "The first 25 pages … show every sign of being prepared with care," said the Court of Appeal.
Crucial in this case, however, were the views of the two experts for one side and the two experts for the other. Crucial, too, was that fact that they took opposing views over whether the original surveyor had done his job properly. Pages 25 to 27 of the judgment contained summaries of all the experts' views. Ten lines were spent on the plaintiff's case, explaining that "the property had suffered from significant structural movement"; but no supporting argument or detail was provided beyond the statement that: "They [the experts] drew my attention to a number of features concerning the property, which they said confirmed their opinion." A page was then devoted to assertions made by the defendant's experts, but again no supporting evidence or argument was provided.
Transparency is the watchword – transparency of the thought process. If the scales of justice are tipped, say why
The losing party complained that it was impossible to know why the judge agreed with the surveyor's experts, rather than the plaintiff's. True, the judgment explained that the judge had taken note of the way experts had reacted to questioning, but that left the Court of Appeal "none the wiser". Nothing in the judgment suggested any errors by the judge; it was just opaque. Conclusions, but no reasons.
There are no absolute rules about explaining judgments but it is right to say that the losing party must be able to understand why it lost, although it is only necessary to give detailed reasons when there has been something in the nature of an intellectual exchange, especially between experts. Transparency is the watchword – transparency of the thought process. If the scales of justice are tipped, say why.
And, if reasons are thought to be inadequate – and by that I mean being able to tell whether the deciding person had adequate reasons for the conclusion reached – invite that person to justify why they did not explain their judgment fully. Judges will do this; so, too, should an arbitrator, if they consider the request has merit.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or e-mail him on firstname.lastname@example.org.