Some parties in a dispute think they can win a case by bullying and abusing the adjudicator. And you know what? They might be right …
’I am bound to say that, in my view, such discourtesy to the arbitrator was inexcusable.” So said Mr Justice Coulson in the recent High Court case of Dr G and Dr M Goel vs Amega.
It was an ordinary contract dispute - I will tell you more about it shortly. But first let me have a poke and prod at a very common, but odd bit of behaviour. What on earth possesses a party in a dispute to be discourteous to the person who is deciding their dispute? You might have thought that the very last person you would want to upset would be the arbitrator or adjudicator. Why put yourself in the bad books of the dispute decider?
What on earth possesses a party to be discourteous to the person deciding their dispute? the very last person you want to upset is the arbitrator or adjudicator
I see this behaviour time and time again. I get phone calls from adjudicators and arbitrators, I get copies of letters written to them in rude, aggressive language, I get asked what to do. Some of them get upset, some angry, some merely puzzled - some even pretend they don’t care. In one week recently I had three separate incidents of what each person said was bullying of the dispute decider. Sometimes it is the other party who tells me about the behaviour of their opponent.
The Goels engaged Amega to build their new home in Oxshott in Surrey. It was a JCT Minor Works Contract. They fell out. An adjudicator awarded the builder £12,000. It was paid. Amega now began an arbitration to finally decide and obtain a further £200,000. “In the past nine months or so the arbitration has progressed at glacier-like speed,” said the judge. He said that because the Goels applied to the court to remove the arbitrator. The judge said: “I am in no doubt this application must be refused. It is entirely without merit.” He added, of the arbitrator: “He had conducted himself properly in the face of what I consider to be considerable provocation.” When a High Court judge says that, you can be sure he is pretty annoyed.
None of this should have come to court, but I am pleased it did, because we can now talk about it, or rather this problem area.
This behaviour towards the arbitrator and adjudicator nearly defeats me because sometimes it works - more than we know. When a party begins a legal action against another, there is an immediate atmosphere. They become aggrieved. They are niggled by the nuisance factor of the opposition. And lo, whom do we find is a happy chappy? The all-smiling arbitrator who likes the idea of earning his living out of these two disputants. And damn me if the arbitrator doesn’t start giving orders and deadlines and directions. He even asks for a fee. But one party doesn’t want to play and attempts to hoof the dispute decider off the board.
We don’t know what effect this behaviour has on the dispute decider, because I reckon some don’t even realise they are being influenced
Many of these moves are actually aimed not at the arbitrator but at the opponent. It’s called “burning the opposition”. The idea is to introduce the fatigue factor: it just may coax the other side into cutting a deal. For some reason, aggression and discourtesy then speeds towards the arbitrator. Then shouts of bias (that’s what was said in this Goel case), shouts of unfairness, shouts of procedural misconduct, are heard amid periodic bouts of disobedience to the deadlines. It’s almost as though the party has begun to panic. They begin to see they are about to lose the contest.
The heat on discourteous behaviour gets turned up. Why? Because some arbitrators or adjudicators will cave in. Letters will threaten to “report” the arbitrator or adjudicator to the appointing body in the hope this will frighten him. Letters will threaten to apply to the High Court to oust them from their position. This is likely to bring the sort of publicity that nobody wants. And I guarantee you that sometimes this discourteous behaviour wins.
How often, we don’t know. We just don’t know what unwitting effect this has on the dispute decider, because I reckon some arbitrators don’t even realise they are being improperly influenced. It’s a human flaw. The arbitrator and adjudicator who is attacked may take against the attacker or may take with them … for a quiet life. Some may do a carve-up. None of us know the effect. In this Goel vs Amega case the court supported the arbitrator. It’s his job to now go on and decide the case and do so impartially, and without rancour. He will.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple