Tony Bingham Is it the dispute decider’s job to pick one of the warring parties’ positions and declare it the right one? Or can they come up with a solution that neither party argued for?
The Multiplex vs Mott MacDonald dispute is interesting in itself. Interesting as well is a remark or two from the senior judge in the case. “It is commonplace in dispute resolution that the judge, arbitrator or adjudicator may come to a decision that is somewhat different from that advanced by any individual party.”
And if I may add: I agree … and it causes the individual party to reach for their head and pull out great fistfuls of hair.
Let me tell you what’s happening between Multiplex and Mott at Wembley.
In 1998, Wembley appointed Mott structural and M&E engineer. When Multiplex won the main contract in 2002, Mott was novated to it. One of the contractual promises, innocuous on the face of it, was that Mott would retain all “pertinent records” and deliver them up when requested.
Last August, Multiplex asked for a range of information; Mott said it was going too far.
A dispute began about what was meant by retaining and delivering up “pertinent records”. Multiplex said the words went as far as digging out all of what went on between Wembley and Mott. Mott has now spent 1000 man-hours digging out 100,000 pieces of information. Not enough, said Multiplex. It accused Mott of being in breach of contract. Without more ado, Multiplex called for an adjudicator to declare that what Multiplex said was meant by “pertinent records” was the true interpretation.
Pause for a moment. Isn’t it interesting how far adjudication has gone? We originally envisaged the odd row between the plasterer and the main contractor, but here we are dealing not only with professional services contracts but with the deployment of sophisticated rules in law.
Mott spent 1000 man-hours digging out 100,000 pieces of
information. Not enough, said Multiplex
Anyway, the adjudicator appointed was a solicitor. He didn’t accept Multiplex’s explanation of the disputed words. Well, said Mott, that’s that. Multiplex had failed. But when the adjudicator went on to explain what he thought the words meant, Mott went to the High Court to get the decision set aside.
“It is commonplace in dispute resolution that the judge, arbitrator or adjudicator may come to a decision that is somewhat different from that advanced by either party.
“There may be cases where the decider is only permitted to accept or reject the claimant’s case, and is not permitted to reach any different position. But such a method of dispute resolution is not commercially sensible in general run-of-the-mill cases … In the present case the adjudicator gave careful consideration to the meaning of [the] clause. He was unable to accept the interpretation of [the phrase] advanced by either party. Instead, he formulated his own interpretation. In my view, whether he was right or wrong in that interpretation, he was resolving a pre-existing dispute between the parties.” So that’s OK, then.
There you have it. On the one hand, it is respectably argued that the job of the judge, arbitrator or adjudicator is to resolve the dispute. On the other hand, it is respectably argued that the job of the judge, arbitrator or adjudicator is to decide the dispute. Losers like it when the decider thinks of an answer that makes them win. Winners, especially those who become losers, pull their hair out.
Mind you, 10 years ago, when the Construction Act was a bill, parliament decided 28-day adjudication was not to be called a “dispute resolution system”. The proposed clause said: “A party to a construction contract has the right to refer a dispute arising under the contract for resolution under a procedure complying with this section.” But the word “resolution”
was dropped. It can’t be found in the act. Twenty-eight days from start to finish is a tad tight to do more than decide the arguments already in the bag. As for a third man introducing his own arguments, hearing new arguments, scrapping the existing ones ... it’s tricky. The system is much more simple: “Please, Mr Referee, decide our quarrels.”
As for litigation or arbitration, there is something a bit odd in spending months developing the case with the opponent, getting all the evidence and arguments and law lined up only to find at the court or hearing that the tribunal introduces new arguments and ideas of its own. Of course that’s why barristers wear wigs … to hide the bald spots. I should know – look at mine!
Tony Bingham is a barrister and arbitrator. Read his regular blog at www.building.co.uk/blogs