Adjudication is king

Last week I told you about the Court of Appeal decision in Ferson Contractors Ltd vs Levolux Ltd. I told you how that court reminded us that something in a construction contract is doomed if that something is contrary to the intentions of parliament. "The contract must be construed so as to give effect to the intention of parliament rather than defeat it." And what you and I and every lawyer and adjudicator, and every judge must fathom, is exactly what those confounded intentions are. Why? Because it's a waste of time and money trying to include a term in a contract that is offensive to parliament, or conduct adjudication as a party in a manner that is offensive to parliament. And it is a waste of time for an adjudicator to decide a dispute in a manner that is offensive to parliament. Oh, please tell us what these intentions are!

Truth is that acts of parliament are prepared without really knowing, or indeed being able to know, what facts or events might arise in the future. Remember too that the product is conceived by a dysfunctional coalition of partisan politicians with private agendas. The proverbial camel is the product of the committee charged with inventing the racehorse. The idea that statutes can be easily understood has long since been consigned to the fires of hell. Nine-tenths of appeal court cases are all about what this or that parliamentary provision actually intended.

In Macob vs Morrison the judge told us that "the intention of parliament … was to introduce a speedy mechanism for settling disputes on a provisional interim basis and requiring the decision of adjudicators to be enforced pending final determination." He also said parliament must have been aware that the 28-day timetable was unreasonably tight and "likely to result in injustice". As for procedure, "the adjudicator is given a fairly free hand … he can act inquisitorially or invite representations from the parties … Parliament intended that the adjudication should be conducted in a manner which those familiar with the grinding detail of the traditional approach to the resolution of construction disputes apparently find difficult to accept … Parliament," he concluded, "has made clear that the decisions of adjudicators are binding and are to be complied with until the dispute is finally resolved." Four years later, the Court of Appeal in Ferson vs Levolux approved of all those remarks.

Further explanations of parliament's intentions are to be found in Bouygues vs Dahl Jensen, where the Court of Appeal described adjudication as "a quick and interim but enforceable decision" in which "the adjudicator's decision may give rise to an immediate payment obligation". It was "designed to enable the contractor to obtain payment of interim payments".

In Outwing vs Randall the judge explained how legislation is interpreted "purposely". For example, there was no provision for a "stay of execution" of the decision since this would undermine the purpose, which is finality (at least temporarily).

In five years we have turned adjudication from a crash, bang commercial pro-tem idea into a sophisticated judicial dispute resolution machine

In Scotland, the judge in Karl vs Sweeney considered parliament's intention was to get a practical provisional decision in proceedings where the parties are likely to have commercial considerations in mind rather than a concern for extensive legal analysis.

In Ballast vs Burrell, the judge explained that parliament did not intend an adjudicator's failure to comply with the express or implied requirements of the scheme as fatal to an adjudicator's decision. His interpretation was that parliament did not intend the adjudicator to be unfair or allow a party to be unfair.