Simply find yourself in the position of the responding party in adjudication. Honest, I once had a splendid head of hair; it was jet-black, curly and the girls loved it. Then out of the blue came a box of lever-arch files. Some twerp had secretly gathered his case … and sneaked up on my hair.
My client was the victim of an adjudication ambush. Truth is, it is often the devil's own job to persuade a claiming party to play fair and not prepare his case in secret so as to beat up the other party. But come across that same claimant later, in the position of respondent, and he will scream and cry about a surprise attack.
And he is bloomin' well right to complain. I liked my jet-black hair. I don't like unfairness. Construction never asked for unfair adjudication. This is not an act of parliament for sneaks.
That's all very well, but is it actually true that the side that begins the adjudication has sneaked up on the other fellow? The shout goes up from the respondent on sight of the Lever Arch files: "This is a mere claim! You cannot adjudicate mere claims!" That is true. The act says: "Only disputes can come to adjudication." So the complaint is that there is no dispute yet.
That is what happened when Norwest Holst called in the adjudicator to deal with money said to be due from subcontractor Beck Peppiatt. Apparently, Beck Peppiatt was threatening to adjudicate, so the contractor got its retaliation in first. Norwest Holst called in the ref and presented him with 11 lever-arch files. That put Beck Peppiatt on the back foot. Hair fell out. It looked for the entire world like an ambush. Indeed, the adjudicator refused to proceed as it was not yet a crystallised dispute.
A little while later, Norwest Holst made another attempt to adjudicate. This time the adjudicator said a dispute had arisen, so the contest could start. Beck Peppiatt immediately sought a declaration in the High Court that it should stop since there was no dispute.
John Redmond doesn’t think referring the crystallised dispute in its entirety was a duty on the referring party. Redmond has a lot of hair
The lesson from the judgment that followed is really all about applying the facts to the test of whether there is a dispute. The judge made it all look rather easy. The law says: "It must be clear that a point has emerged from the process of discussion or negotiation that has ended and that there is something that needs to be decided."
The judge looked at what discussion had taken place to decide if it had ended. Beck Peppiatt said that the arrival of 11 lever-arch files immediately after the adjudicator had been appointed was unfair. It needed time to consider parts of the bumf. But, fortunately for the contractor, Norwest Holst had given time to Beck Peppiatt to consider that little lot, so the judge said the dispute had crystallised and the adjudication could go ahead.
So, you need to canvass your position before an adjudication, regardless of whether you are the referring or the responding party. I am a fan of what somebody once called "position statements", made before an adjudication begins. I can't recall his name but I know he is very nearly bald.
Now look at that debate on the Adjudication Society website, which covers similar ground. In other words, what is the fair way to adjudicate? John Sims has few strands of hair on his head. He says the side that kicks off the adjudication is duty bound to refer the already crystallised dispute in its entirety. I like this. It is similar to telling the truth. The truth is the whole truth and nothing but the truth – not your side's version of the truth. And since we have a legal definition of a dispute, we know what has to be done. Sims says that adjudicators should refuse to proceed until the whole dispute is referred.
John Redmond agrees that the adjudicator's job would be easier if this happened. But he doesn't think it is a duty. Redmond has a lot of hair. He does agree that a referring party cannot dream up a claim and start the adjudication before the respondent has any idea what is going on. Nor can it bring an already crystallised dispute on a completely different basis, because it isn't now the same dispute. He, too, is against the ambush.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.