Michael Joyce, a chartered engineer, chartered geologist and chartered arbitrator, has written to the AGS in connection with some of our observations about the effectiveness of arbitration in the AGS document Management of Risk Associated with the Preparation of Ground Reports – Guidelines for the Preparation of the Ground Report.
In brief terms, the authors of the document (at paragraph 4.4.9) express a preference for litigation because of the legal expertise of judges, their increasing technical understanding and, most importantly, their willingness to deal swiftly and decisively with unsustainable negligence allegations raised simply as a means of avoiding or delaying payment to a specialist. Mr Joyce points out that most arbitrators nowadays have had some legal training and have the benefit, over judges, of being qualified technically in the subject area of the dispute. In his experience, arbitrators will take a robust and harsh line with those presenting bogus negligence claims as a way of circumventing a specialist’s entitlement to his fee for the work undertaken.
Mr Joyce’s views demonstrate, at the very least, the dramatic differences in the views of some lawyers and engineers regarding the relative merits of arbitration and litigation. AGS members should therefore be aware that although the authors of the AGSGuidelines for the Preparation of the Ground Report generally prefer litigation to arbitration, many experienced practitioners have the opposite opinion.
Eversheds LLP Solicitors
AGS Loss Prevention Working Group