Private investigations

I’ve had a word with those two busy adjudicators Chris Dancaster and John Riches. They are the authors of the most recent adjudication book Construction Adjudication - Second Edition. I wrote about it here on 6 August. Why a word? Because I wanted to know if they “do” their adjudications like I do. I simply list Red and Blue quarrels. Then I decide each quarrel from what Red and Blue tell me about facts and law. Any initiatives on my part will be to ask, “Have I understood what Red and Blue have put to me?” None of the three of us would dream of pointing to something that neither Blue nor Red had thought of. None of the three of us would make a case of our own. None of the three of us will do anything but ask of ourselves which of Red and Blue’s arguments are the more convincing? Easy.

Can you feel a “but” coming? It is a very good “but”. What do you do when Blue and Red are not represented by fancy-footwork dispute consultants? What does the adjudicator do when a real builder turns up and so does a real subby. The angry subcontractor has not put together a pukka “referral”. The builder has not put up a pukka “response”. True, they have sent a pile of bumf to the adjudicator, and there is a label flapping on a lever arch file that says “Go on then, clever dick adjudicator, you get to the bottom of it!”

Yes, yes the subby has told you it is a complaint about non-payment. He has even shown you the invoices and told you how much more cash is due. This is a world apart from the referrals and responses from our highly sophisticated representatives. In fact, the bumf from the subby is so vague that it is likely – more than likely – to lose because the case hasn’t been presented in such a way that the adjudicator can decide it.

Dancaster’s approach is one that I think has legs. He is willing to ask this pair of Blue and Red if he is permitted to be an investigator, and to fathom Red and Blue’s position. I think I would do that, too. Riches is more cautious about becoming what I will call an expert investigator. He says it might cause more trouble. We’ll come back to that.

So, what is to be asked of our real builder and real subcontractor? First, seek permission to part company with deciding the extant arguments and become the expert investigator adjudicator. Here is a questionnaire:

What do you do when Blue and Red are not represented by fancy-footwork dispute consultants?

• Do you both agree that I can figure out what the contract is made up of? And find the express and implied terms, and meaning and true intentions of Red and Blue’s contract?
• Do you both agree I am to find out for myself which terms have been broken?
• Is it okay for me to find if there is a right to compensation?
• Can I fathom losses, seek the evidence and establish that all this loss is caused by a broken promise?
• Can I reach into textbooks and cases and law reports for the applicable law?
• Can I rummage for evidence from the files, people and the cleaning ladies’ uncles?
• Can I test the evidence?
• Can I allocate the burden of proof?
• Can I apply what I have discovered about facts and law to give effect to Red and Blue’s contract?
• Do I need to report all I find to Red and Blue and invite comment before I decide the dispute?

And if Red and Blue say yes to all of that, ask another two questions: Do you accept that this expert investigation may take longer than 28 days? Do you accept that the investigator’s fees may be higher, but the costs of resolving the dispute may be less?

The caution from Riches is that it won’t work too well. He worries that this approach will uncover even more rows and quarrels and he worries about how much of a superman this expert fellow has to be. Hell, this fellow might go off on a frolic of his own, coming up with all sorts of half-baked ideas. What do I say to that? I say better to get permission to do that instead of doing it, as happens now, without permission at all.

Tony Bingham is a barrister and arbitrator