According to The Times, a bit of a game is going on, whereby some folk are doing their homework on judges to see what connections they might have with a view to trotting them out in some future trial, presumably when things are not running in their favour. If the judge is suddenly compromised, there will be enormous delay, frustration, cost and more besides.
I will tell you more about the remarks in The Times in a moment. But going back to tame adjudicators, amber lights must be flashing over some of the ideas floating around for the appointment of adjudicators. One well-known outfit has, in its home-made form of contract, buried on page one-hundred-and-something, in ever-so-tiny print, the name of the adjudicator. I know the bloke. He is OK. In fact, he is rather good. But his name isn't just popped on a dotted line; it's a permanent fixture.
And it actually goes further than him just being the adjudicator; the form makes him the arbitrator, too. Now this is all a bit half-baked. First, you can't have the adjudicator deciding disputes then the same fellah donning the arbitrator's cap to hear the same dispute all over again. It would be like your appeal being heard by the judge that sentenced you to death. But that's not the only half-baked part. The other bit is that this bloke must be regarded as having a special relationship with the company that prints his name in the document. Ask yourself if you feel comfy with this idea.
Another enterprise I know lists six adjudicators in its non-standard in-house "standard" form. I don't know how that list was compiled. One or two of them are not the sort of person I would be happy with. That's not the point, however. The choice of which of the six will adjudicate is made (would you believe) by the firm that invented the form. In other words you, as the other party, don't get a choice. "Tut-tut," they say, you should have negotiated about these people or our right to choose at the outset of the contract. Ha, ha – tripe.
‘Tut-tut,’ they say, you should have negotiated about these people or our right to choose at the start. Ha, ha – tripe
So, what is the worry? Well it is "appearances" that make all the difference. It looks as though these adjudicators or listed arbitrators are in bed with one party. If Bloggins is a company's listed or preferred adjudicator, can Bloggins be trusted to be an impartial, even-handed, objective, decision-maker? The answer from Bloggins is "yes, of course". Snag is, it is not him that decides. He has stumbled into the law of bias. Yes, yes, I know that the Construction Act talks only about the adjudicator being "independent", but I think it cannot really turn a blind eye to the test in law for bias. I gave a run down on this before (15 January, page 55); the test is: "Would the reasonable man (an outsider) consider that Bloggins might unfairly regard with favour or disfavour the case of one party in the dispute?" I know what's troubling these people who put particular names in their documents. They don't want duff adjudicators or arbitrators; they want folk they think are OK. But the other side thinks there is an odour in the air.
So what of judges? The Times ran a story recently suggesting that some lawyers are building files on judges. Seemingly, this is on the back of the Pinochet affair, when a retrial in the House of Lords was forced because some connection was discovered with a judge. In another case, a well-known construction industry judge was made uncomfortable when an unhappy plaintiff claimed that the successful defendant was the tenant of a large property company in which the judge had a family connection.
So, can you see how sensitive all this is? And can you see how an adjudicator or arbitrator who is on the books, so to speak, is playing with fire? Maybe the right thing here is to coax an adjudicator into not becoming so closely linked as to be regarded as one outfit's pet. Above all, Bloggins is going to have to declare that he has an interest by virtue of being a permanent fixture on an in-house list. Then, if no one objects, all would be well. By the way, if I were the opponent, and if I recognised that name printed on page one-hundred-and-something, I would not object … because I know he is OK; 99 out of a hundred other people might get the wrong idea … it's appearances that count.
Postscript
Tony Bingham is a barrister and arbitrator specialising in construction.
