Very important committees at the RICS do their best, too, bless their cotton socks. Not long ago, the dispute resolution committee published a guidance note called Surveyors Acting as Adjudicators in the Construction Industry. It is to be read by those guys and gals on the RICS panel of adjudicators. The smart ones among us, whether adjudicators or mere customers, will want to take a peep, too – if this document contains the dos and don'ts for RICS adjudicators, it will be fun to have the inside track when a hare-brained idea escapes through the adjudicator's lips.
Snag is, the guidance note is produced by a committee. The golden rule for committees is that they should contain two people only, one of whom is on permanent sick leave. The dispute committee at the RICS had oodles of members; it shows up in the umming and aahing. Imagine the adjudicator is tiptoeing along a tightrope across the Grand Canyon: half of the committee is shouting advice while the other is screaming for the adjudicator to come back.
Take, for example, the section "Communication with the adjudicator". Bravely, the committee starts by declaring that "adjudicators are not expected to act as arbitrators". Well, I bet there was a row over that. Already, I can see what is coming: arbitrators won't speak to one side in the absence of the other, and since a lot of adjudicators started life as arbitrators, can they detach that ball and chain from their ankle?
The RICS says that of course an adjudicator may speak to one party alone. In fact, "they may even consider it appropriate to speak with one party alone in relation to substantive matters". But then the chorus of the timid pipe up that they should bear in mind that it is "fraught with possible difficulties" and best avoided. This lot never wanted to go tightrope walking; tell them to go home.
Who in the committee wrote the bit on page 31 with the title “The ambush situation”? Make that person prime minister …
We haven't finished yet. The real adjudicators are shouting some very good advice. I take the guidance note to state (and if I am wrong, I invite the RICS to say so) that it is completely OK to talk to one side without the other, provided the gist of those talks is given to the other party. Hooray for the tightrope walkers.
Before we leave this area, there is a dangerous remark about Macob vs Morrison, case number one in the adjudication story. The authors say the view of the judge in Macob about the role of natural justice is being eroded by more recent cases. It might be more accurate to say that some judges have identified circumstances that help us to understand what Judge Dyson said in Macob. In any case, the Court of Appeal in Scotland in Karl Construction (Scotland) Limited vs Sweeney Civil Engineering (Scotland) Ltd clearly rejected the idea that the traditional adversarial system included hearing both sides. The RICS will have to bring this guidance note up to date quickly.
Now, I have a question for the RICS. Who in the committee wrote the bit on page 31 with the title "The ambush situation"? Make that person prime minister – no, no, make him or her monarch of the RICS. It is brilliant. In short, the note says boot out the party that compiles its case in secret and then pounces on the other party. Good stuff, RICS.
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.