It is not for judges to defend themselves in print. However, I should respond to, and correct, the highly inaccurate suggestions contained in the article, since they seek to summarise the general manner in which the 40 or so TCC judges are said to be enforcing adjudicators' decisions.
It is first worth summarising the role of the courts in adjudication since this is often misunderstood. The Construction Act gives a party to a construction contract a statutory entitlement to refer any dispute arising under that contract to an adjudicator. The contract might provide a contractual framework for an adjudication, but the actual adjudication process is underpinned by the statutory framework and is mandatory. The recalcitrant party has no option but to participate in, and be bound by, the adjudication.
However, the adjudicator is not given the power to issue an enforceable decision – unlike an arbitrator, whose award may be enforced as if it were a judgment. If a successful party is not paid after an adjudicator's decision, a fresh action must be started in the court with the aim of obtaining a judgment that can then be made subject to the draconian enforcement procedures of the court. These may include attachment orders, bailiffs, winding up and insolvency and the freezing of bank accounts.
The TCC, interpreting the Construction Act, has consistently enforced adjudicators' decisions and has not allowed any attempted defence to the enforcement action to succeed where an adjudicator's decision is alleged to be erroneous in fact or law. This approach by TCC judges arises from the will of parliament as reflected in the wording of the act.
The suggestion in Helps' article – that this approach has been modified in recent months – is neither correct nor supported by any of the court judgments he refers to. Indeed, any judge who departed from this approach would be in breach of his or her judicial oath.
Furthermore, I am unaware of the suggested "growing concern" being felt by TCC judges "about policy factors that, in their view, result in them having to rubber-stamp" adjudicators' decisions. If the adjudicator's decision in question resulted from an adjudication that was validly established within the statutory framework and from a procedure that complied with minimum standards of fairness and impartiality, it has always been – and will continue to be – enforced by the court.
Adjudicators are less subject to judicial scrutiny than any arbitrator, minister, public body or tribunal, since they are not subject to any appeal process or to any review on grounds of an error of law or of irrationality. Hence, any judge would be acting unjudicially if they unleashed the full range of enforcement processes on a party where the underlying decision was not empowered by the Construction Act.
The cases in question merely show the court will only decline to enforce an adjudicator’s decision if it lacks jurisdiction or is fundamentally flawed
An enforcing judge must scrutinise the validity and intrinsic fairness of each disputed decision with care before giving judgment. The reported decisions, particularly those referred to in Helps' article, are no more than recent examples of that review process. Nobody in the construction industry can reasonably object to a court first ensuring that the relevant adjudicator's decision was within the jurisdiction of the statutory Scheme for Construction Contracts and the adjudicator's terms of appointment. Nor would they object to the court checking that the adjudicator was not biased in favour of one of the parties and that the adjudication process was not so unfair that, despite the inevitable rush given the statutory time limits, the process fell below the minimum standards of fairness that could and should have been applied.
The reason why there continue to be reported decisions by the TCC judges on enforcement questions four years after the act came into force is because of the growing success of adjudication. There is now a general acceptance by the construction community of both adjudication and the court enforcement of adjudicators' decisions.
Nowadays, adjudication is often used not merely to give a temporary decision but to provide the entire and final answer to a dispute. This general acceptance of adjudication has meant that adjudication is being used in ever widening numbers and types of disputes.
The basis of the court enforcement of adjudicators' decisions that I have summarised would appear to be generally accepted as striking a fair balance between speedy and informal dispute resolution on the one hand and the need to protect the interests of paying parties on the other. This is particularly relevant where money may not actually be due, where the successful party is insolvent or where the paying party's other creditors might be prejudiced.
Helps' article was prompted by five TCC cases, which, he suggested, revealed unwarranted judicial interference in the adjudication process. However, when analysed, these cases merely show that the court will decline to enforce an adjudicator's decision only if it lacks jurisdiction or is fundamentally flawed by unfairness.
Two of his cases were jurisdictional ones. In one, the adjudicator purported to decide something that had not been validly referred to adjudication at all; in the other, the adjudicator decided something that was not even in dispute. The other three cases Helps referred to were concerned with fundamental unfairness in the adopted adjudication procedure – albeit that in one case the complaint was dismissed by the court as being unfounded. The fundamental unfairness cited in that complaint amounted to a complete denial to the paying party of an opportunity to put its case to the adjudicator.
Any fair-minded construction industry participant would surely support these judgments as being in step with the adjudication process and its privileged protection from court interference.
His Honour Judge Anthony Thornton is a judge of the Technology and Construction Court.