No job for Superman

“Two cot deaths is suspicious, three is murder.”

That was in the trial of Trupti Patel, the mum accused of murdering her three babies. Acquitted. Sally Clark’s trial had the benefit of this expert. So too, Angela Cannings. Both convicted. Both got life. Both were released.

Other experts now contend that it was not properly explained to judges and juries that there were alternative explanations to murder, such as genetic or environmental facts. Oh, it is so easy for a tribunal to become beguiled by star experts.

The construction industry has its fair share of convincing experts. Some of them have become adjudicators. Now then: if, as an expert, every word you utter is believed by the tribunal (judge/jury/arbitrator/adjudicator), why bother

to have a tribunal at all? Why not just have

the expert? In fact, why bother to have either party represented by consultants or lawyers?

The expert adjudicator is so knowledgeable about construction and its laws that he can be his own detective, his own advocate (for both sides), his own expert valuer, expert quality examiner, own legal adviser and tribunal decision-maker. He is the all-in-one Superman with the wherewithal to get to the nub of the matter.

Well, actually we don’t decide disputes that

It’s one hell of a disadvantage if the person who is to decide a dispute is so wonderfully right in what they know that they are immovable in their views

way in this country. The system we use is the adversarial system. It relies on the parties vigorously challenging and testing the other

party. It relies, too, on an unbiased, impartial, independent and open-minded person listening to all that challenging and testing and then deciding which of the parties is more convincing. It’s one hell of a disadvantage if the person who is to decide between A and B is so wonderfully right in what they already know about the construction industry that they are immovable in their views. The expert in widget making often makes a hopeless adjudicator in a widget dispute. He is not receptive to other views, or he is overwhelmingly receptive to the views that already match his own. Professor Meadow is convinced that three cot deaths is murder. He is no good as the deciding tribunal. He would be first class as a tribunal if he would accept that he might be wrong and he is willing to listen to the arguments.

What I’m driving at is that in this construction business, there are oodles of ordinary disputes.

The industry opts every day to engage this bright fellow called an adjudicator. Go away please, Mr or Mrs Adjudicator, if you are a know-all. Come in Mr or Mrs Adjudicator if you have an open mind and will simply decide the dispute as put to you by A and B. None of that means that you are not allowed to draw on your personal knowledge of construction. In truth, you are the adjudicator because you can quickly follow and evaluate the evidence put. But it’s the parties that do the putting – not the adjudicator.

In Checkpoint Ltd vs Strathclyde Pension Fund, the Court of Appeal in an arbitration said the question was: “Was the arbitrator supplying evidence or was he adjudicating upon it? Was he evaluating the evidence before him or introducing new and different evidence?” The court approved the use of own knowledge and expertise to evaluate the arguments of the parties. The court also explained the English adversarial system as distinct from what is known as the inquisitorial system. “They are adversarial when the judge or arbitrator confines himself to the issues and evidence placed before him by the parties. They are inquisitorial when he is able to open the inquiry into issues he deems relevant, even if not raised by the parties, and when he is able to investigate the dispute himself and seek out for himself evidence material thereto.”

In Checkpoint, the arbitrator did not stray outside the issues joined between the parties. He used his own knowledge gained from his experiences, but only about the issues argued by A and B.

In the Construction Act, the scheme indicates that the adjudicator may take the initiative in ascertaining the facts and the law, but only such as is “necessary to determine the dispute”. It does