黑洞社区

Goodness knows why I came to read the court judgment in the Sir Paul McCartney and Heather Mills divorce settlement. Maybe the words 鈥渃laim鈥�, then 鈥渃ompensation鈥� and 鈥渓oss and expense鈥� began to jump out. Familiar words in our building industry disputomania business. I began to take even more interest when I saw the words 鈥渉ead on conflict鈥� referring to the evidence of McCartney and the evidence of Mills.

Then the judge began to talk about the wife鈥檚 case as to her wealth being 鈥渨holly exaggerated鈥� and elsewhere he said 鈥渢he facts as I find them to be do not support the wife鈥檚 case鈥�. What emerged from the judgment was the conclusion that the judge was grappling with 鈥渕ake-believe鈥�. And do you know, if you are in a building industry dispute and find yourself explaining your case to a building industry adjudicator or arbitrator or judge, you would be well advised to reflect on 鈥渕ake-believe鈥�.

And reflect on this please. The person deciding your dispute is ever so reliant on you. When I say reliant on you I mean reliant on the witnesses and reliant on the representative. The dispute decider has dependence on, even trust in, those who come to tell their story. Smack bang on the front of this McCartney judgment, this High Court judge explains that there is 鈥渉ead on conflict of evidence鈥� in this case.

It鈥檚 quite normal for one witness to swear blind to an event happening and another to swear it never did. Dispute deciders get used to that. But the judge has to form impressions of people from their statements. Of the McCartneys, he said: 鈥淭he husband鈥檚 evidence was, in my judgement, balanced. He expressed himself moderately, though at times with justifiable irritation, if not anger. He was consistent, accurate and honest. But 鈥� I cannot say the same about the wife. Having watched and listened to her give evidence, having studied the documents, and having given in her favour every allowance for the enormous strain she must have been under, I am driven to the conclusion that much of her evidence 鈥� was not just inconsistent and inaccurate, but also less than candid. Overall she was a less than impressive witness.鈥�

See what I mean about 鈥渞eliant鈥�? When the adjudicator, arbitrator, or judge in a building dispute loses confidence in a party, need I say more? It鈥檚 ever so important not to spin a daft line, or pull a fast one.

To be fair, 鈥渕ake-believe鈥� is frequently not about dishonesty. It wouldn鈥檛 surprise me if Heather Mills did not utter a single fib. Time without number, I hear nonsense on stilts from parties and/or their representatives. But so often they actually believe what they say.

黑洞社区 disputes are sometimes founded on make-believe. Stories are built on absolute conviction about the 鈥渞ightness鈥� of a position. Subcontractors, for example, have been told so many times that they 鈥済et screwed鈥� by main contractors that they believe it. And as the dispute drags on and as stories become rehearsed and rehearsed again, even the most unsupportable harebrained notions become firm conviction and, dammit, 鈥渢he truth鈥�. Then when it comes to a dispute decider it has all the ingredients of a whopping lie. It鈥檚 not, it鈥檚 self-deception.

It wouldn鈥檛 surprise me if Heather Mills did not utter a single fib. Time without number I hear nonsense from parties, but so often they believe what they say.

Whether a story is a lie or make-believe is all very interesting, but the job of the dispute decider is to merely ask which story is more convincing. The judge in the McCartney case said Mills had over-egged the pudding and 鈥渢hus deprives the court of any sensible assistance鈥�. There is a good tip. That claim of yours for loss and expense or set-off which is over-egged contains a try-on and, if spotted by the adjudicator or arbitrator, will cause a crisis of confidence.

Just one tail-piece: while I was penning this article, a leading adjudicator phoned.

鈥淗ave you read the McCartney judgment?鈥�

鈥淲丑测?鈥�

鈥淏ecause it contains real good guidance for adjudicators.鈥�

Good guidance too for the parties and their representatives. Beware make-believe.