Not so, said the Court of Appeal. And yet what the judge did is what lots of adjudicators are doing all the time. Are we being unfair, too?
First, let me tell you about my holiday in Portugal, near Faro, an excellent little hotel with the best food ever. My wife and our two babies had a great time. Home. Pulled into the driveway to spy the remains of our cold-water tank, the one in the loft. Odd. The smell indoors was not quite the smell of freshly brewed coffee in the morning. The sight was not quite the tidy furniture layout my wife demands. Why do tanks and pipes burst while folk are away on holiday? The mess took three months to sort out, including ripping out the living room ceiling. So when I read about Stuart Baddeley and Margaret Allman's floods, I wanted to give them a cuddle like I did with my wife and babies in our flood.
The Baddeley cottage is in Talke, Staffordshire, near Stoke-on-Trent. Picturesque. They bought it in 1992. The first flood was in November 1993. Water and sewage went everywhere. The smell was horrid. Damage was significant. Christmas came and went without a carpet, without furniture. Come the end of January it was back to normal. The next Christmas Day the flood came again. The hi-fi floated. A month later, it came again, and two days later, again. The place flooded year in, year out. The owners couldn't sell up because by now there was a great label on the house; it was blighted. Would you buy it? No, thank you.
Why the flooding? The neighbouring land, owned by a Mrs Barker, contained a large hollow. In heavy rain it became a pond. So the immediate cause of the flood was an overflow. There were land drains across Mrs Barker's field, which once connected to a manhole. Something had gone wrong there. The local authority was in charge of that manhole. Mrs Barker got someone in to pump water from the field and rod the drains. None of it worked. So seven years on, the utterly fed-up victims of the flood put a toe in the water of litigation. They sued Mrs Barker for nuisance.
All the early hoops in the action were gone through. The trial was fixed to last two days.
The great push is to save time. So the trial proceeded without anybody being called to the witness box, no experts and certainly not the victims
That was March last year. Now then, even a two-day trial is big bucks. So those of us who hang around courts are on the look-out to get done as quickly as possible. The judge zipped through this action in a super-fast fashion.
He was persuaded by the defendant's barrister to decide the matter on the written materials already in the files prepared for trial. I cannot help wondering if the barrister was up to his neck in 28-day adjudications. He seemed to think that since all the arguing was now in experts' reports and in witness statements, the judge could simply read it all, pretend to be an adjudicator and decide on documents only. The judge was delighted to go along with this idea. The great push is to save time. So the trial proceeded without anybody being called to the witness box, no experts, no factual witnesses and certainly not Stuart Baddeley or Margaret Allman. They had endured seven years of hell, never had a say and had their claim summarily dismissed.
A three-man Court of Appeal thought that explaining the story by documents only was not a safe way to proceed. The judge had failed to provide the opportunity for evidence to be called and to provide answers to fundamental questions. "In that regard, the judge erred." Plainly the impression was that fairness, or the impression of fairness, was missing. A retrial was ordered.
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.