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Here鈥檚 my starting point, says the MSc student: 鈥淭he influence of lawyers on presentation and procedures in adjudication: is it the right way for construction?鈥� It鈥檚 that time of year again. These questionnaires roll in. It鈥檚 a sort of brutal cross-examination. Tick the box Mr Bingham; answer 鈥測es鈥�, 鈥渘o鈥� or 鈥渄on鈥檛 know鈥�. I get twitchy. Today鈥檚 student is tomorrow鈥檚 managing director. Today鈥檚 student is already gathering a plethora of prejudices in that confounded haversack. These dissertations are no inquiry: they are framed to reinforce the sometimes-daft ideas already festering in the attic of that future managing director鈥檚 mind.

But this questionnaire on my desk is quite well done. He has already made up his mind, of course. He is practising to one day be the key decision-maker, the chair of the tribunal, the dispute award writer; and he is already working backwards from the result he wants. This student does not want lawyers to interfere with disputes. Ah well, this student is already a surveyor, so he knows a thing or two about disputomania.

Come on Mr Bingham: 鈥淒o you think that the use of lawyers and their legal knowledge is good for the construction industry?鈥� I lay a pound to a penny that my interrogator is bursting, nay pleading, for a gallery of 鈥渘o, no, nos鈥�. Then he asks, 鈥淒o you think having a legal background is a benefit when it comes to the decision-making process?鈥� or 鈥淒o you think it is an advantage to have knowledge of the industry when it comes to the decision-making process?鈥� The student nearly says, 鈥淒o you think these tykes benefit or hinder the process?鈥� And anyway, he asks, 鈥淒o you feel lawyers try and pressure adjudicators into formal procedures of hearings?鈥�

OK, let鈥檚 take this very slowly. We are talking about using lawyers, or not, to sort out disputes in adjudication. So we at least start with the key commodity: 鈥渄isputes鈥� in construction. Having got a dispute we then move it to adjudication, say the students. So we haven鈥檛 got a debate about 鈥渨hether or not to us adjudication鈥�, only about whether the disputants should reach for a lawyer to (1) advise them, and/or (2) represent them and/or (3) be the decider of the dispute.

Now, let me admit to something important. In 1997, I helped to compile panels of adjudicators for the forthcoming Construction Act. My name was on none. That鈥檚 because I thought this type of adjudicating was not judicial adjudicating at all. I thought it would merely be an independent surveyor or who would look and sniff at differences of opinion between the two project surveyors (the PQS and the builder鈥檚 QS). So, the adjudicator QS would look at the tight-fisted valuation of the PQS, as against the overblown valuation of the builder鈥檚 QS. Not lawyers鈥� work at all. That鈥檚 why many of the panellists are QSs.

By the time the disputes started to roll in, I twigged that the arguments were not so simple after all. I was receiving telephone calls from QS adjudicators asking for legal advice about law of contract. These were not valuation disputes: they were about the meaning and intention and scope of the contractual bumf. We were into 鈥渞ights鈥� and 鈥渙bligations鈥� and 鈥渂urdens鈥� and 鈥渁cts and omissions鈥� and 鈥渂reaches鈥� and 鈥渄amages鈥� and, and, and. None of this was first-year law student stuff; certainly not the smidgen of law taught to QSs or architects or . It was heavyweight law. Disputants began to ask for lawyer adjudicators, and believe me, that鈥檚 right when it鈥檚 not straightforward valuation work.

As for representatives being lawyers, let me tell you that as a lawyer adjudicator, I came across some very good non-lawyer representatives 鈥� and some dreadful ones. The truth is that a lay or technical representative sometimes misses a knockdown winning 鈥渞ight鈥� or 鈥渄uty鈥�, which they fail to deploy. It is not for me, the lawyer adjudicator, to make his case for them, is it?

So, my student inquisitor, it鈥檚 horses for courses, and en route to becoming MD, watch out for that haversack.

鈥楧o you think the use of lawyers and their legal knowledge is good or bad for the industry?鈥� I lay a pound to a penny my interrogator is pleading for a gallery of no, no, nos