In Scotland, parties can no longer indulge in games of ambushing courts with fresh evidence. An eminently sensible idea, and one that should apply to adjudication
From now on in Scotland, it is a no-no to begin a building contract dispute procedure unless the matters in dispute have been “discussed and focused” by the parties. And woe betide any legal advisers who ignore that rule. The reason? Because “the procedure functions best if issues have been investigated and ventilated prior to the raising of the action”. That’s the new rule in litigation, but I bet that if you spoke to any adjudicator he or she would wish for precisely the same for adjudication.
Litigation, north of the border, stipulates that before coming near the court, the pursuer (claimant or plaintiff in old money) will have:
- Set out in correspondence to the intended defender the nature of the claim and the factual grounds and the legal bounds on which it proceeds.
- Supplied to the defender copies of any documents relied upon.
- If any expert evidence is necessary, obtained and disclosed to the intended defender the expert’s report.
What is more, the defender is expected to respond by setting out the nature of its defence, and the facts, and the legal grounds and the expert’s reports. Then the pursuer is expected to set out its reasoned reply to what the defender said and what it put up. This will do away with the ambush. Spoilsport! You’ll be taking the fun out of litigating and chasing disputes into the hands of adjudication, where the ambush lurks.
The English courts call all this a “pre-action protocol”. The idea is to have your cards on the table. No surprise evidence comes in. No surprise submission on law. It’s not so many years ago there was no such thing as exchanging witness statements with the other side weeks and weeks before the trial. Nobody would dream of saying who was going to give evidence; oh, such fun. As for experts, there was no obligation to exchange reports. The advocate did his cross-examination of all and any witness “on the hoof”. Preparing for trial was hopeless; you didn’t know what to prepare for. Litigation was a sport. And if the barristers were in a sea of mist, so too was the judge. But not so nowadays. The bloke deciding disputes has got a plethora of information to pre-read before trial. Ambushes are off the menu.
It’s not so many years ago there was no such thing as exchanging witness statements with the other side weeks and weeks before the trial
So, what’s up with adjudication? Well, let me tell you. When the payer pays up, he often takes the payee by surprise. The cheque is smaller than expected, the certificate is different from expected; the snagging list is longer than expected. And if the fed-up party begins adjudication, it’s often because their plea for an explanation has met a wall of silence or heap of bull. Ah, then they begin adjudication. The reply to the referral is heaving with all sorts of splendid explanations about why the money is not payable. Till then, silence. But now, in the response, out trots the great English barrister to captivate and convince the adjudicator that this defendant ought not go to the gallows. “Hang on a damn minute,” says the party that came first to adjudication. “It was up to the respondent to put all these arguments to me before the adjudication was rolled out.” “No, no,” says the respondent, “I am a mushroom farmer. I keep you in the dark, then when you least expect it I chop your legs from under you.”
Then there is one helluva row about new evidence not being admissible, or the referring party “submits” to this quite different set of arguments by compiling a “reply to the response”. In other words, the parties use the adjudicator’s time to argue new arguments.
The toing and froing is like a tennis match. But if the adjudicator demands his 21 days from when the ball bashing has stopped, none of that matters.
Take a leaf out of Scotland’s book. Take a hint will you? Before you come to adjudication, please “discuss and focus”. Adjudication is completely loony if you think that the 28-days process is intended to draw out the arguments and get an accurate decision from a witless, breathless, panting adjudicator. Repeat each day, morning and night, “the procedure functions best if issues have been investigated and ventilated prior to the raising of the action.”
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