Like the umpires in last month’s ill-fated test match, adjudicators test the dispute against the rules and make a judgment – unfortunately some construction folk, and one or two lawyers, haven’t quite grasped that they can’t tamper with the ball either …
Cricket umpire Darrell Hair and his fellow umpire Billy Doctrove gave the press and cricket world a real good story for the dog days of summer. Protesters in Pakistan burned effigies of Hair after he made two decisions that led to the test match being awarded to England. I heard myself muttering “Who’d be an umpire?”
And then the phone rang. The voice said that he was ready to shoot the umpire. No, no, not Hair or Doctrove, this was a construction dispute umpire … an adjudicator. He told me the story. Within a few minutes it was plain to me at least, that the adjudicator had done his job perfectly and precisely … he had applied the rules of the game, the rules in the contract, the rules for deciding disputes. The adjudicator had decided my caller had won nothing. My caller was defiant: “It is a staggering example of an overbearing adjudicator applying the letter of the law.”
Well, errr, hmmm, yes.
The truth is that my caller didn’t actually want the adjudicator to adjudicate. Instead he wanted the fellow to do everything and anything to help him win. He had convinced himself that he, or rather his client, deserved to win. And, if there were gaps in his case, a hole or two in his evidence, well now, the adjudicator could have invited him to fill the gaps, plug the holes. Instead, the adjudicator simply announced there wasn’t enough evidence to prove a point.
Hair and Doctrove also applied the rules when the Pakistan team refused to come out to play. The bails came off the stumps when the rule was broken. Game over. Match awarded against the side having the tantrum.
Retired cricket umpire Dickie Bird would not have adjudicated. He said, “I’d have done everything possible to keep the match going.” “After the match, you all get around the table and thrash it out.” Mr Bird wasn’t all too impressed with using the letter of the law.
That was when I realised that my caller didn’t want his adjudicator to actually adjudicate. He had spent all his construction years mixing it with architects, engineers and quantity surveyors, who play the game like Dickie Bird.
It’s wrong to adjudicate a dispute as if it is deciding a certificate. Make nobones about it: a dispute decider is carrying out a judicial function
Look, when an architect issues a certificate indicating the amount due, they are not adjudicating a dispute. There is no judicial duty. The architect, engineer or QS is carrying out an investigation; then they make a decision, but not a judicial decision in the way of determining a dispute. They are deciding what to do in all the circumstances. Dickie Bird had his eye on “all the circumstances”; they included the fact that 23,000 spectators plus millions on television and radio were deprived of a complete test match. An architect may well “adjust” his certificate to suit “all the circumstances”; and he can do so because he is not an arbitrator or an adjudicator or a judge.
The significant distinction is in the peculiar nature of duties of a judicial character. In this country judicial duties do not involve investigation. That remark was made in a famous case in the House of Lords, 30 years ago, called Sutcliffe v Thackrak.
The parties submit the dispute for a decision. Each party submits his evidence and contentions, and it is then the function of the arbitrator, adjudicator or judge to form a judgment and reach a decision on the materials before them. But it doesn’t surprise me one jot if an adjudicator who was previously trained and then practised as an architect, engineer or QS attempts to carry out an arbitration or adjudication in the same mode as a certifier. Call it habit, call it a norm, or call it a comfort zone. But it’s wrong to adjudicate a dispute as if it’s a certificate. Make no mistake about it: a dispute decider is carrying out a judicial function.
Does all that mean that if an adjudicator, arbitrator or judge becomes “investigative” he goes wrong? Does all that mean that Hair and Doctrove went wrong?
The answer is that no wrong is done on either count, although there are lots of “ifs”. If an adjudicator acts like a detective they will be criticised – if their “inquiry” is unfair. It is dangerous to be “an inquirer” given the timescale of adjudication. The court will strike down unfairness. As for cricket and umpires bowling googlies, well now, it’s only a game after all. Isn’t it?
Tony Bingham is a barrister and arbitrator. This article is a reprint after last week’s bizarre production error …