The banality of error

My eye has fallen on a case decided recently in the House of Lords. It was all about the delivery of a tanker-lorry load of stuff, which went wrong. The delivery ticket said it was a particular chemical from a firm called Berk. It wasn't. That much was clear soon after it was pumped into a silo. Mighty soon. The mix exploded. The stuff in the tanker was in truth a different chemical due on the same day from a firm called Biachem. There had been a mix-up by the haulier.

The reason for telling you this story is because I want adjudicators and those who come to adjudication to know how ordinary it is to be wrong. Look, it is ordinary for binding decision-makers to be wrong. It is ordinary too for one party to be right in all their arguments but still lose. A party to a dispute can lose because the person who decides the dispute is wrong. And being wrong goes with the territory. Expect it. The first judge in the tanker-lorry case decided the case the way he saw fit. Biachem said he was wrong. Tosh, said the Court of Appeal, he was right. Biachem then said the Court of Appeal was wrong to say the first judge was right; the House of Lords said the Court of Appeal and the first judge were wrong. The story as to why the Court of Appeal and the first judge were wrong doesn't matter for the moment. The point I want to make is that if you come to a third-party decision-maker, whether judge, arbitrator, magistrate, jury, coroner, ombudsman, rating tribunal or construction industry adjudicator, don't expect the decision-makers to be right. You might be the one who has it right and yet the decision goes against you. It's the decision that's wrong, not you.

I keep coming across adjudicators who are fretting about being wrong. They are genuinely worried about arriving at a wrong conclusion and doing a party down. I do not know one adjudicator who is blasé or indifferent about the decision and its accuracy. I come across plenty that do not want to appear daft or thick and plenty that are anxious to keep or build a good reputation. I come across even more that are terrified of being lambasted by critics. I even come across those who think they ought to be right.

When the adjudicator comes to apply the facts to the law, there is a real chance that the outcome will be wrong on the facts or on the law, or on both

Take a deep breath, all you adjudicators, and try to comprehend this: you won't be right, you won't be popular, you will be described as daft; someone will want to take revenge, destroy your reputation, have you hanged, drawn and quartered. And get this, you will not know the law. The reason is that building construction law is ever so well developed in the UK. In fact, it is the most well developed, complicated, refined construction law in the world. And what's more, there is only a handful of judges in the UK that have got a firm grasp on this specialist area of law. As for facts, there is a real chance that adjudicators will not get the facts right either. The reason is that the presentation of those facts by the parties will be, how shall I say, unsophisticated. So, when the adjudicator comes to apply the facts to the law in the quiet of the office, there is a real chance that the outcome will be wrong on the facts or on the law or on both.

As for being lambasted, disgruntled parties will do that. Rarely though will the judiciary scold a lower order decision-maker. In the 121 High Court judgments about adjudication, not one judge has laid into the adjudicator. There is a huge effort by judges to be polite about the decisions they review. I have only seen one set of harsh words directed at an arbitrator by a court. Judges usually speak of "lower" tribunals as having taken a "curious" approach, or a "direction" not ordinarily taken. The House of Lords in the recent tanker-lorry case "had the unfortunate position of not agreeing with the Court of Appeal". Politeness itself.