Are you listening?

The number of adjudicator appointments made last year by the Association of Independent Construction Adjudicators (AICA) went up 55%. I went along to listen to their conference the other day. Four super speakers and a room full of some of the leading construction adjudicators in the land.

If ever you get a chance to listen to lawyer Derek Roebuck, take it. He is editor of the International Journal of Arbitration and was the first speaker. His talk about disputes was Insights from History: Relevant Now? And while he talked, I listened. But I did something else, too: I looked at the other listeners. Everyone was listening. The speaker coaxed us busy dispute folk to back off from the coalface for a moment, urged us to recognise that the way we think is neither accidental nor fixed by the laws of nature. We make assumptions that we have been taught. And then we get locked into our assumptions.

Roebuck makes you think and so does his new book, Early English Arbitration. And you will say, as I did, why on earth should I read a story of how disputes were managed in England from the earliest of times to 1154 AD? Well, there’s a simple answer: to increase understanding and do the job better. “It would be an odd scholar,” says Roebuck, “for whom greater knowledge did not increase humility.” I like that.

We were all brought back to the coalface by speaker Neill Stansbury. And I watched the listeners: nobody dozed, but instead eyes widened and bottoms and feet wriggled. His topic was construction industry crime; we listened to him easing himself into what you and I call “white collar crime”. Then he moved up a gear by ever so smoothly by giving ordinary examples of how construction folk can find themselves up to their neck in prison buildings. No, not building them; living in them. And here in the room were those adjudicators who are, on occasion, told porky pies by those who are indifferent as to whether their claims are only half true. Stansbury was urging us to detect folk who are rubbing up against fraud, recognise it as fraud and report it as fraud.

Sir Anthony Evans is an international arbitrator. All those years of experience, all those cases and his message was simple: settle. You won’t, of course.

Barrister Sean Brannigan explained two aspects of the recent adjudication decision in Cantillon vs Urvasco. The High Court judge in the case explained that it was open to either party to deploy any new argument for or against the disrupted claim in an adjudication. The big snag is that we adjudicators have been taught that you can’t squeeze a quart into a pint pot. Bring gallons of arguments if you like, matched only with a willingness to give gallons of time to the other side to answer – as well as a willingness to give oodles of time to the adjudicator to do the judging.

Brannigan’s then went on to describe an attractive move by the learned judge, who did a bit of filleting by saying it was okay to sever the good parts of an adjudicator’s award from the bad – it was a sort of survival tactic. Brannigan must be right when he says that if the bad bits are bad because they exhibit bias, then the whole lot must be struck down. But there is a more subtle snag, says Brannigan. Severability might ignore the fact that some (he added “quite a few”) adjudicators approach the time-limited task before them by seeking to ensure that the dispute is “resolved in a manner which is fair overall”. In short, compile a decision that is “broad-brush”. If Brannigan is right, then severability is tricky, even dangerous. The enemy of a well-thought-through set of quarrels to be adjudicated is time. Rush it, deprive the dispute decider of time – and you’ll get “broad-brush”. So bring lots of new arguments, cramp the opponent and adjudicator for time and get the brush off – that’s the “broad brush” approach.

My favourite speaker of the day was Sir Anthony Evans, erstwhile Court of Appeal judge, now international arbitrator. His message was simple. Negotiate a settlement. All that experience, all those years, all those cases and he tells you: settle. You won’t, of course; it’s been this way since 1154.

This AICA mini-conference was full of enthusiasm and a willingness to learn and share. Well done, everyone who took part.