It's the World Cup that started my change of mind. The refereeing was oozing mistakes. That Spanish ball was never ever out of play. The referee made a mistake. Judges make mistakes, so do arbitrators, so do adjudicators. Referees all, to a man or women, make mistakes. It's the name of the game. That's one reason why all these folk are immune from being sued.
The other reason can be seen from the Wimbledon glare and, worse still, the Wimbledon tantrum. A 6 ft 7 inch tennis star fixes a mistaken linesman with a stare that would scare the pants off the Pope. It says: "You make one more call against me and your guts will make my next racket." It's called intimidation. The poor linesman is only a referee, like a judge is only a referee. Judges tend not to get shouted at by brazen-faced tennis idols, nor by anyone else for that matter. The secret is all in the distinctive garb. The fancy dress somehow wrong-foots those who would like to play the game of browbeating referees.
Did you know that a lot of bullying goes on in arbitration and more and more in adjudication? It was the DTI that highlighted this problem two years ago. Those of us who sit as arbitrators and adjudicators have known about scare tactics ever since the year dot. I call it finger-wagging. The representative of one of the parties leans forward and pokes a discouraging finger at the arbitrator. The scowl on the face tells all. He probably plays tennis at the weekend, too, and menaces linesmen. Special word messages also come from finger-waggers. They mumble "misconduct" or "irregularity" or even "serious irregularity". You can see what's going on can't you? The idea is to discourage the arbitrator or adjudicator from making a decision against the bully. And if that works with just one arbitrator or one adjudicator in the world, then no award, no formal decision, no declaration, no order is safe. And a decision that is unsafe should be set aside.
Statutory immunity is there to protect the public from the pushy behaviour of a party intent on undermining the independence of the arbitrator
And to make the arbitrators' and adjudicators' decisions safe, let me tell you what parliament has done. It has given the same freedom of thought and action and independence to arbitrator and adjudicator referees as it has given to judges. This is statutory immunity.
Let me tell you how it works and why. The Construction Act is plain. It says: "An arbitrator and adjudicator is not liable for anything done or omitted in the discharge or purported discharge of his functions as arbitrator or adjudicator unless the act or omission is shown to have been in bad faith." That immunity is not there just to protect arbitrators and adjudicators who make mistakes. It is there to protect the public from the pushy and oppressive behaviour of a party intent on undermining the independence of the
dispute-deciding person. The statutory immunity is there because, without it, there are some ordinary folk in this world who will intimidate referees with camouflaged threats. They know that some referees cave in. The referees might not even know that the intimidation has worked. Nobody, absolutely nobody, must be allowed to subvert them by threats of punishment or reprisal.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on email@example.com.