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Chartered Institute of Arbitrators South East Branch "Enough about the law - what about the facts?" … A talk by John L Riches, Tuesday 10th February 2009 Although the snows had receded in the Surrey highlands, the 10th February was still a cold evening so what better way to warm up the branch members than a typically lively and provocative presentation by John Riches. As the title suggested John's theme was that there is too much law about and what is needed in any dispute resolution process and, in particular the courts, is greater emphasis on the factual issues and less on the supposed legal principles. In his introduction he explained that his talk had emerged from a shorter presentation he recently made to the junior section of the Society for Construction Law in return for free food and drink all evening. Since much of his attack was aimed at the legal profession this did seem to be something of a case of biting the hand that feeds you! In John's view there is simply too much law being reported probably more the benefit of the publishers than the readers. He questioned whether precedent is dead, noting that the days of great trials producing seminal points of law no longer seem to occur and that the CPR of 1996, far from being an incentive to civil litigation has been something of a deterrent with the costs burden front loaded as parties struggle to comply with the requirements of Pre-Action Protocols. More specifically John suggested there is too much law by the first instance courts and an almost endless series of decisions by TCC judges from summary judgement applications to enforce adjudicators' decisions. What is needed is to concentrate of the facts. He noted that Hadley -v- Baxendale may be over a 150 years old but remains the starting point for any judicial consideration of damages but to do so the court has to apply the facts of the particular case to the principle of law. One particularly interesting observation was that the legal profession are educated in the law but not in the management of facts when what the clients require of their lawyers is an initial examination of the facts without which the lawyer cannot predict the outcome of a case. John then turned to his experience in his practice and his view of the value of expensive computer modelling tools used by law firms and electronic document management systems was less than complimentary! Nevertheless he emphasised that analysis of the evidence will always be the key to the provision of accurate advice and prediction of the chance of success. To ensure we remembered something he left us with a simple formula:-
As always with a John Riches presentation a lively discussion ensued which included the observation that there is an element of the chicken and egg with law and fact. The basic principles of law need to be identified and applied to analysis of the factual matrix. Reflecting on John's excellent presentation I would offer one observation. A significant part of the TCC's work load is indeed adjudication enforcement and the streamlined procedure that court adopts (Part 24 Summary Judgement) is intended to ensure the TCC completes enforcement issues in the same time period as the adjudication itself. The reason so many TCC decisions are published is two fold. Firstly because modern reporting is comprehensive and readily available online and secondly because the TCC decisions serve to provide adjudicators and practitioners alike with guidance on what is still a very young and in some ways unique procedure for dispute resolution. Perhaps it was inevitable that having co-authored the first authoritative guide to construction adjudication John now finds the author of the rival publication is none other than Coulson J of the TCC! John did not on this occasion have the last word, that was reserved for his wife Helena who suggested, after a power cut plunged the hotel into darkness, that those members wanting dinner would probably have to settle for a cold salad by candle light! All in all a memorable meeting! Report by Charles Brown |
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