This is one of those stories that could and should have begun and ended in a cheap and cheerful adjudication. It began that way all right. Part way through the supply and installation of the £500,000 balconies to the 156 flats in north London, Opecprime invited Discain to clear off without its money. The subcontractor called for the adjudicator. The adjudicator decided that £55,000 was to be paid to Discain. Opecprime saw a glitch in the procedure and invited Discain again to clear off without its money. A judge refused to give instant judgment to Discain for the enforcement of the £55k, so Discain went for a full trial. The judge detected unfairness in the adjudication process and ruled the whole process void. Now what?
Apart from the two companies becoming even angrier with each other, Discain had to opt for litigation. In other words, it had to fall back on the court system, issue a writ, and argue for its outstanding balances afresh. So, having had an adjudication in July 2000, when Opecprime was ordered to pay £55k, then ordered not to pay the £55k by the court in April 2001 because of a technical hitch, did Opecprime get away scot free? No, it didn't. When it came to a full trial of the same dispute in litigation last month, the judge ordered Opecprime to pay £50,200. So the snakes-and-ladders board has taken the parties back to where the original adjudicator said they should be. If they had stopped thinking of technical arguments to defeat the adjudication, the huge cost of the litigation would have been saved. As to that cost, a little bird told me that Opecprime may face a bill for £100k from Discain, plus a similar sum for its own costs.
Then there is another swingeing, hurtful cost. It is the glare of publicity. Opecprime has not come out of this affair too well. The judge had the burden of trying to decide whom to believe. Arbitrators and adjudicators have the same burden. How do you choose between conflicting evidence? Well, I'll tell you what happens in trials, tribunals, even informal meetings; you end up assessing the person. The advocate will probe for inconsistencies, well-rehearsed answers, bluffs, motives for bottom-covering, for partisanships, for pure bloomin' lies. And so, if the issue is which of two or more witnesses to believe, you assess the person and their credibility.
His tactic to deal with the unwelcome experience of cross-examination was to give his evidence quite unnecessarily loudly
At the beginning of the trial, counsel said Opecprime's Comer twisted the truth. What did the judge think? He said: "Mr Comer's style of doing business was to seek to pressurise and to intimidate those with whom he dealt." For example, he purported to accept an offer that had not been made. "He was manoeuvring for advantage," said the judge. He threatened a claim for substantial damages. "The claim for damages was without a shadow of justification." The stopping of a cheque for £130,000 was "economic pressure to seek to achieve his wishes", and "in order to advance Opecprime's case, Mr Comer has deliberately and falsely stated events as he would wish them to have been". Finally, "when challenged with the inconsistencies in his evidence, and with inherent improbabilities during cross-examination, Mr Comer's favoured resort was vagueness. He was in my judgment a totally unreliable witness".
Another witness, a Mr Purfield, was also "most unsatisfactory". He was a former Discain employee who, said the judge, "was prepared, not at all convincingly, but with enthusiasm, to give false evidence on behalf of Opecprime".
Another witness was a project manager for Opecprime, Phil Little. The judge said: "Mr Little was not … a very proficient purveyor of untruths." And went on: "His tactic to deal with the unwelcome experience of cross-examination was to give his evidence quite unnecessarily loudly. He was virtually shouting. No explanation of such behaviour was offered or emerged."
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 firstname.lastname@example.org.