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Presenting a case - a lawyer's perspective

Chris Hough, 13 September 2005

Chris Hough, who is a Chartered Civil Engineer and solicitor with extensive experience of dispute resolution, presented us with a tour do force of the types of considerations that should be made when presenting your client's case, with special regard to adjudication. He dealt with the important question of what tactics should be adopted to increase your client's chances of winning.

Chris's first important question was "is adjudication the right forum"? Before rushing into adjudication consideration needs to be given to the following important matters:

• Are we likely to win?

• Does an adjudicator have jurisdiction?

• Is the contract really evidenced in writing for example?

• Is the claimant due something, and are personal feelings such as annoyance standing in the way of recognising that?

• Inevitably commercial relationships may be affected by adjudication, to the detriment of the claimant. Would a less confrontational from of dispute resolution maintain those commercial relationships?

• Considerable management resources will be needed by both parties to fight the case. Are those resources available and even if they are would their time be better spent on existing projects?

• Costs in adjudication are becoming higher all the time. Arbitration can be as cheap and will provide better finality, albeit that practically few adjudication decisions subsequently go further.

• Adjudication can lead to "rough justice", with little time to properly test the available evidence.

Chris therefore makes the important point that, despite its apparent popularity, adjudication will not always be the correct forum to resolve all disputes. An important first tactic is deciding which forum is most likely to achieve your client's aspirations. It may not always be adjudication.

The second point to consider is how you can influence the adjudicator's decision. Having dismissed bribery, blackmail and physical violence Chris went on to look at some practical questions that you need to answer before preparing your case. The first and most important of these is "what does the adjudicator need in order to find in your client's favour" Chris's main answer is simplicity. You must keep your case as simple as possible, breaking complex matters down into manageable chunks upon which the adjudicator can make enforceable decisions.

Other matters to consider in this respect include identifying the adjudicator's likely natural "prejudices" and the methods he may use to decide disputes, and tailoring your referral to those. For example if the RICS is the nominating body it is likely that you will get a QS who may well adopt a different approach to say, for example, an architect.

Chris's third point to consider is knowing what and what not to refer to adjudication. Complex disputes can prove difficult. Will you be able, in the available time, to satisfy the burden of proof in a claim? Likewise large claims for negligence can be problematic, as they will often require expert evidence on the normal level of competence within a profession, which often cannot be properly tested in an adjudication. Multiple disputes that require several adjudications can also be problematic, as these can take considerable time and costs and the parties can become battle weary before the end.

Chris then went on to give us the benefit of some advice on the tactics to be adopted once you have chosen adjudication. Generally it is better for the referring party to narrow the dispute as much as possible in order to try to exclude a counterclaim. However the danger with this tactic is that you may make the remit so narrow that the adjudicator does not have the jurisdiction to make the decisions you need him to make in order to win.

Chris also considered the tactic of asking an adjudicator to decide a preliminary issue, in an effort to stimulate agreement between the parties. For example you could ask for a decision on liability, leaving quantum to be agreed or dealt with in a separate adjudication. Whilst this can be superficially attractive, you end up with a decision with no monetary award. Chris pointed out that the only "safe" award when it comes to enforcement is one that requires "A" to pay "B" a stated amount.

Other tactics discussed by Chris included adjudicating on the penultimate payment so that you still had the final account to fall back on if you failed to persuade an adjudicator first time around, and the timing of any referral, including the surprise ambush at Christmas time.

Finally Chris dealt with the contents of your Referral Notice. His first point was a heart-felt plea, as an adjudicator, to paginate all of your supporting documents and refer to the pagination number in all submissions. Again this makes life easier for the person you are most trying to influence, the adjudicator. Chris also gave some other good tips about your Referral Notice including

• Ensure that witness statements, including those of experts, have a declaration of truth and are signed by the witness, to make them more believable.

• Keep your Referral Notice as simple as possible whilst getting over the points you wanted to make.

• Keep legal argument, and case law, to an absolute minimum, as it will rarely be decisive.

• Don't include privileged documents in your submission.

• Make sure you read and comply scrupulously with the adjudication rules, including any time limits they contain.

Chris's final point is that the Referring Party still has to prove his case. Whilst keeping it simple make sure that you have provided the evidence to do that and make sure that you have made the adjudicator's task of finding that evidence as easy as possible.

Following his talk Chris ably fielded some lively questions from his audience.

Reported by Peter Cousins

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