Layngross
T: +44(0) 1932 856463
E: derek@layngross.com
W: layngross.com

Derek is a member of the FIDIC President’s List of Adjudicators and the Irish Government's Panel of Construction Contract Adjudicators, in addition to several UK adjudication, arbitration and mediation panels.  He is a Chartered Arbitrator, Accredited Mediator & Conciliator, Registered Adjudicator and Dispute Board Member, who accepts domestic and international appointments as the neutral person in each of these construction dispute resolution disciplines.  He is also a Past Master of the Worshipful Company of Arbitrators and a Chartered Civil Engineer, well versed in resolving technical, contractual and quantum disputes in the construction industry. 

If you feel Dr Ross can assist you, please call him for a no obligation discussion on +44 1932 856463, or simply reply to this email with your details.

Below is an article he has written, which he hopes you will find of interest.

 REASONS FOR REASONS

Every parent knows that reasons given for refusing a child's demand are frequently met with the question "why?".  Persistent children can keep such a dialogue going for quite some time until, in frustration, the parent gives the unanswerable reason "because Mummy says so."  This is undoubtedly a reason for refusal, but in the eyes of the child it is not a very satisfactory reason, which frequently brings on the tears.

It is not much different in arbitration and adjudication.  Arbitrators and adjudicators are usually required to give reasons for their awards and decisions.  Generally the winners are not too concerned about why they have won.  On the other hand, losers are usually extremely interested to know why they have lost.  Thus the principal function of reasons is to explain to losers in particular why the winner has won.

Reasons of the type "because Mummy says so" are clearly unsatisfactory in an arbitration or adjudication context because they do not assist anyone's understanding of the dispute decider's decision.  The not infrequently seen reason "I prefer the evidence of witness X to that of witness Y", whilst undoubtedly a reason, falls into the "because Mummy says so" category in my view because, without more, it does not explain the reason for the dispute decider's preference.  As a result it immediately begs the question "why?".

In my book, the only reasons of any value are those that explain the respective entitlements and liabilities of the parties on the basis of the terms of their contractual agreement and how they have both performed their respective obligations in practice, or not, as the case may be.  The dispute decider needs first to decide what happened, and then apply those facts to the parties' contractual agreement to determine where liability for loss and/or additional costs lies.  Thus the dispute decider's reasons need to explain, with reference to the evidence presented, his findings of fact and his interpretation of the contract provisions.  Expressing preference for one piece of evidence over another of contrary effect undoubtedly gives a reason for the dispute resolver's findings.  However, if the reason for the dispute decider's preference is not also given, the underlying reason for the decision has not, it seems to me, been properly explained. 

To my mind, the hallmark of good reasons is that they leave no reasonable room for anyone to ask the follow up question "why?".  Thus, until that point is reached, I believe dispute deciders owe it to the parties to give their reasons for their reasons.

Dr Derek Ross

23 May 2017

 

Please Note: The foregoing article has been prepared by Dr Derek Ross for the general interest and benefit of readers.  It is not intended to be a definitive analysis of the law or of other matters discussed.  Neither does it create a client relationship between the recipient and Dr Ross.  Thus no liability is accepted in respect of any reliance placed on any statements made in the foregoing article.  Proper advice ought always to be taken before deciding to take, or not to take, action in respect of a specific issue.

 

© 2017 Dr Derek Ross & Layng Ross Construction Disputes Resolution.

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