Whether it's litigation, arbitration or adjudication, it would all run much more smoothly if everyone showed their hand right from the start
Do you know that the courts are very enthusiastic about winning back your disputes business? Does that sound a bit odd? What I am getting at is that we've been through a curious spell: for the past five years or so, the court has been doing its level best to get you to shop elsewhere. So you have. Nowadays, you adjudicate or mediate or arbitrate or expert evaluate or negotiate; anything but litigate. That's because they made us feel unwelcome.
But there is one real trick that the court, especially the construction court, has up its donkey-jacket sleeve - it has good dispute deciders. Call them judges if you like; I call them adjudicators. And if you can strip away all the rigmarole, all the pre-adjudicating maypole dancing and get down to dispute deciding with a TCC judge, you get quality decision-making.
For example, root out something called the "pre-action protocol". Oh, its inventors meant well. The notion is to have a procedure to examine the strengths and weaknesses of the claims and defences and counterclaims before serious money was spent on the actual case. Didn't work. It was or is too prescriptive: do this, then do that, then do the other. Trouble was that if the dispute wasn't got shot of then, it would still grow arms and legs. And sometimes, there is a suspicion that the other side is keeping half of its case up its sleeve anyway. Throw it all out. Instead, simply ban new stuff once the action has begun. What? Mad? Daft? Bear with me.
Let's go back some years. It is not that many years ago that litigation was entirely focused on ambush. You didn't show your hand to the other folk around the table at all. You wouldn't have a clue who I was bringing as a witness of fact, never mind know what my witness would say. Nor would I dream of telling you in advance who my expert witness would be, nor what they would say. There was no such thing as witness statements served in advance. The first you would hear of what my people had to say was when I examined "in chief". Then your barrister would have to cross-examine on the hoof. Complex experts were cross-examined without the barrister having a clue what complex opinion was going to drop from their lips. Litigation was a sport. The advocate was a gladiator. The customer was a paying spectator.
Eventually the idea came that the cards should be face up on the table. Expert reports are exchanged and experts meet, discuss and argue. Witnesses of fact have to publish their evidence in writing weeks before trial. Hell, the fun is ebbing away. The trouble with the fun was that the customer was paying for a day, a week or months of paint-balling by others. It had to stop.
It is hopeless commercially to ‘go’ with a piece of litigation then be on hot bricks waiting to see what the other fellow chucks into the dispute
So it's high time for the next bit of "cards on the table". It's simple: before you litigate, arbitrate or even adjudicate, you tell the other side what your complaint is; they tell you theirs in return. Then you tell them which of your rights have been injured by them, then tell them what evidence you have, tell them what legal principles arise, tell them what you will tell a judge or arbitrator or adjudicator and be told the same back. Then warn the other side that all the arguing is done. The writ is being served. Nothing new can come in.
But I tell you this: if the court refused point blank to allow new stuff in once the action was begun, the whole game would come properly into the commercial world. The modern commercial manager wants to know the risk before they begin litigation. Our system, by allowing the dispute to develop during the process, is daft. It is hopelessly uncommercial to "go" with a piece of litigation, then be on hot bricks waiting to see what the other fellow chucks into the dispute. Many a counterclaim is thought up in half an hour, believe me. Then the other bloke is ambushed again.
UK litigation has gone halfway to cards on the table. We need to go all the way. We don't need some prescriptive pre-action protocol; instead a dead simple system. Tell 'em your story, give 'em your evidence, tell 'em what legal rules apply. Then the other side tells 'em back. And when the writ is issued, the shutter comes down. The judge then adjudicates. Simple.
Tony Bingham is a barrister and arbitrator