And the way we do it is revolutionary. From the very beginning we wholly accepted the rightness of phoning or meeting or corresponding with the parties and anyone else involved one to one. The golden thread to this has always been telling the parties what was said. Nothing relevant is private. The Official Referees Solicitors Association saw how sound this practice was. Its own rules for adjudication say: "The adjudicator, if he thinks fit, may meet and otherwise communicate with one party without the presence of other parties."
Of course; it's the 28 days that demands that dynamic, no-frills approach. The association went on to demand "fairness and impartiality and the right of each party to be given a reasonable opportunity, in the light of the timetable, of putting his case and dealing with that of his opponents".
Now then, what's all this fuss about Discain vs Opecprime? (number 57 in our series.) The judge said: "There is no reason in law why an adjudicator should not have telephone conversations with individual parties to the adjudication."
The real trouble in Discain is that it is plain as a pikestaff that the judge is very uncomfortable with this one-to-one investigation. He says:
"It would make life a great deal easier for the adjudicator if he declined to do so." He steers the adjudicator to limit one-to-one telephone calls to those of a purely administrative nature; and he even prefers that those be made by a secretary.
The theory is great; the reality is different. On Day One of 28, the "referral" bundle turns up.
It is supposed to "refer" the crystallised dispute.
A judge seeing these bundles would go spare.
This isn't a bundle of snazzy pleadings; this isn't a bundle of crisp witness statements, or an expert report. This is an industry bundle by non-lawyers. The only pleading is that the claiming party begs the adjudicator to "bloody well sort out the row and get me my money". It is as though a builder turned up in court one morning and said to the judge: "Go on guv, get stuck into that." And the judge whips off his wig and gown to reveal the S logo on his vest and slips his red undies over his trousers. The adjudicator is Superman. His clerk is Lois Lane (but she only types). Superman asks the questions.
Meanwhile, the other party has taken a point on jurisdiction. He tells the adjudication to go away, and then bombards them with Lever Arch files in case they don't. Those files will have umpteen gaps and will fly off on tangents. The adjudicator picks up the phone and sorts out what the hell is really being argued for. The phoning goes on and on.
At day 20 and their wit's end, the adjudicator might get the parties around a table. Then someone can't come, another must leave early, and someone else is having a baby. The so-called "hearing" is just a row and little is achieved. Much better to pick off the parties one-to-one. It works, damn it.
Even on Day 28 there is still a question or four swimming around in the adjudicator's mind.
The fax is at meltdown, but the parties are trying to cram more arguments into it. Then crash, bang, out comes the decision. These adjudicators have really got to know their construction law and how to dig for evidence.
Thirty years ago Lord Denning gave the guidance I like best of all when explaining the work of any investigation: "Before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice." If you can give all the chapters and all the verse in this 28-day timetable you are Superman. Right, Lois?
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.