Some argue that the British penchant for litigation started with the Puritans who believed that, along with justice, blameless parties would receive some form of moral approbation for their actions, while the wrongdoer would bear for ever the stamp of judicial condemnation. There is a common misconception, particularly among those who are unfamiliar with civil litigation as a commercial tool, that a judgment gives something more than mere money. Nowhere is this more evident than in the divorce courts where warring couples slog it out, not merely for ownership of the cd collection and the dog, but also for a judicial pronouncement on the bitch/bastard debate. Increasingly, disputing parties have come to realise that 'I'll see you in Court' actually means 'I'll write out a big cheque' win or lose. Alternative Dispute Resolution (adr), such as mediation, is on the increase and has, mercifully, become the norm in matrimonial matters.
Nevertheless we can still reflect upon the qualities we expect from our judges, arbitrators and adjudicators. Perhaps you would like to rank the following in order of preference: fair, impartial, independent, immune, fast, right. These are all concepts which the Arbitration and the hgcr Acts and the Courts have had to consider.
The Arbitration Act, for example, requires arbitrators to act 'fairly and impartially' between the parties. By contrast, the hgcr Act requires adjudicators to be 'impartial' but not 'fair'. Both Acts, however, steer clear of the notion of 'independence'. This could be because it has caused so much trouble in America, where considerable amounts of pre-trial energy are wasted on trying to establish that, because the arbitrator has the most tenuous connection with one or other of the parties, he or she is not 'independent'. In the small (and social) world of construction disputes and tribunals, advocates and experts bump into each other regularly: does familiarity colour their judgement? One particular problem is illustrated by two cases.
In one, architect Nye Saunders & Partners sued the helicopter entrepreneur Alan Bristow for its fees. The project had not proceeded because inflation at the time (1970s) was such as to send the estimated building costs spiralling into the stratosphere. The judge, Donald Keating qc, then head of well- known construction chambers but sitting as a part-time judge, found that the architect had been negligent in not warning of the effects of inflation and dismissed its claim. One of the grounds of the architect's appeal, which was described as 'unfortunate', was that justice had not been seen to be done because the barrister acting for the other side practised from the same chambers as the judge. The Court of Appeal pointed out that neither the judge nor counsel for the defendant were members of a firm, there was no suggestion that the two had ever discussed the case and, had the judge felt that there was any possible ground for conflict, he would, by virtue of the judicial oath, have excused himself from the matter. The court dismissed the allegations as 'mischievous'.
Since then question of bias has also hit the headlines with Lord Hoffman's role in the Pinochet case. And it was against this background that Laker Airways recently sought to remove an arbitrator from a panel deciding its dispute with fls Aerospace, on the basis that there were justifiable doubts as to his impartiality. Laker relied upon the same grounds as raised by Nye Saunders, namely that the arbitrator was a qc practising in the same chambers as the other side's counsel. The judge explained that barristers are self-employed and are prohibited from forming partnerships just so that they can appear against each other. They can be in the same chambers but may not even know each other that well ('my learned friend' being something of an empty courtesy it appears). Conversely, however, specialist barristers, being reasonably thin on the ground, may know each other. They may not be independent but they can still be impartial. Interestingly, the new GC/Works/1 standard form calls for the adjudicator to act 'independently'. If these cases are anything to go by, there may be trouble out there.