It is tempting to pronounce that lawyers should stay out of adjudication and let construction types untangle disputes. But too many arguments can be decided fairly only with specialist legal expertise
Here’s my starting point, says the MSc student: “The influence of lawyers on presentation and procedures in adjudication: is it the right way for construction?” It’s that time of year again. These questionnaires roll in. It’s a sort of brutal cross-examination. Tick the box Mr Bingham; answer “yes”, “no” or “don’t know”. I get twitchy. Today’s student is tomorrow’s managing director. Today’s student is already gathering a plethora of prejudices in that confounded haversack. These dissertations are no inquiry: they are framed to reinforce the sometimes-daft ideas already festering in the attic of that future managing director’s mind.
But this questionnaire on my desk is quite well done. He has already made up his mind, of course. He is practising to one day be the key decision-maker, the chair of the tribunal, the dispute award writer; and he is already working backwards from the result he wants. This student does not want lawyers to interfere with disputes. Ah well, this student is already a surveyor, so he knows a thing or two about disputomania.
Come on Mr Bingham: “Do you think that the use of lawyers and their legal knowledge is good for the construction industry?” I lay a pound to a penny that my interrogator is bursting, nay pleading, for a gallery of “no, no, nos”. Then he asks, “Do you think having a legal background is a benefit when it comes to the decision-making process?” or “Do you think it is an advantage to have knowledge of the industry when it comes to the decision-making process?” The student nearly says, “Do you think these tykes benefit or hinder the process?” And anyway, he asks, “Do you feel lawyers try and pressure adjudicators into formal procedures of hearings?”
OK, let’s take this very slowly. We are talking about using lawyers, or not, to sort out disputes in adjudication. So we at least start with the key commodity: “disputes” in construction. Having got a dispute we then move it to adjudication, say the students. So we haven’t got a debate about “whether or not to us adjudication”, only about whether the disputants should reach for a lawyer to (1) advise them, and/or (2) represent them and/or (3) be the decider of the dispute.
Now, let me admit to something important. In 1997, I helped to compile panels of adjudicators for the forthcoming Construction Act. My name was on none. That’s because I thought this type of adjudicating was not judicial adjudicating at all. I thought it would merely be an independent surveyor or engineer who would look and sniff at differences of opinion between the two project surveyors (the PQS and the builder’s QS). So, the adjudicator QS would look at the tight-fisted valuation of the PQS, as against the overblown valuation of the builder’s QS. Not lawyers’ work at all. That’s why many of the panellists are QSs.
By the time the disputes started to roll in, I twigged that the arguments were not so simple after all. I was receiving telephone calls from QS adjudicators asking for legal advice about law of contract. These were not valuation disputes: they were about the meaning and intention and scope of the contractual bumf. We were into “rights” and “obligations” and “burdens” and “acts and omissions” and “breaches” and “damages” and, and, and. None of this was first-year law student stuff; certainly not the smidgen of law taught to QSs or architects or engineers. It was heavyweight law. Disputants began to ask for lawyer adjudicators, and believe me, that’s right when it’s not straightforward valuation work.
As for representatives being lawyers, let me tell you that as a lawyer adjudicator, I came across some very good non-lawyer representatives … and some dreadful ones. The truth is that a lay or technical representative sometimes misses a knockdown winning “right” or “duty”, which they fail to deploy. It is not for me, the lawyer adjudicator, to make his case for them, is it?
So, my student inquisitor, it’s horses for courses, and en route to becoming MD, watch out for that haversack.
‘Do you think the use of lawyers and their legal knowledge is good or bad for the industry?’ I lay a pound to a penny my interrogator is pleading for a gallery of no, no, nos
Tony Bingham is a barrister and arbitrator