Adjudication is about deciding the ‘now dispute’ and moving on. But it’s not always so simple. In this case, a firm beefed up its arguments and came back for round two
Will it come as a surprise to you if I suggest adjudication is still evolving, still trying to find itself, nine years after it was introduced? At least that’s the feeling I got when I read the three-man Court of Appeal judgment last week in Quietfield vs Vascroft Contracts.
We’re all wrestling with a hard truth:
28-day adjudication works ever so well in 28 days if you bring one bite-sized quarrel to be decided at a time. You never do that in litigation. In litigation, you bring all the quarrels and have one big party. That’s why it takes many moons to prepare for trial, many days of trial and tons of money. But there is this loony idea that adjudication is litigation in 28 days. Tosh.
Adjudication was intended to nip a dispute in the bud. If a variation cropped up on the first day on site and if that became a quarrel, an adjudicator would un-quarrel it. Easy. Twenty-eight days is ample. And if by the next week there was another quarrel, we do the same again. Get the idea?
Now see what happened in Quietfield vs Vascroft. The job fell behind. Vascroft operated the JCT notice machinery for time loss. The architect then did its stuff on the extension of time machinery. It said no extension. Vascroft called on the adjudicator. The adjudicator reviewed the architect’s material. He agreed with the architect that,
on this information, there should be no extension of time. I expect Vascroft swallowed hard: it was looking down the barrel of £1000 damages for every day it was late. Nasty.
Now then, litigation mentality is to say “that’s that”. You have prepared your case, presented your case and ended the game.
But what if the builder comes back with a much better prepared extension of time argument?
You are not allowed to go away, compile a better case and come back. And if you think of adjudication in that way, can we have a wrestle? Can I suggest that 28-day adjudication is only a decision on that quarrel at that time on that material? Can I suggest that if the extension of time matter is put together in a substantially different way, it can come to adjudication again? Can I suggest adjudication is a commercial management tool rather than a branch of litigation? It only decides the parties’ arguments, the “now arguments”.
As Lord Justice May said in this case: “Adjudication is intended to provide a speedy and proportionate temporary decision of disputes … The idea includes that such a decision may both hold the ring for the moment in a fair way and help the parties, if possible, to resolve their disputes finally by agreement without the need for protracted and often very expensive arbitration or litigation.” So, if a builder notifies the architect of delay and the architect refuses an extension of time on that material and that material comes to an adjudicator, the adjudicator simply decides their quarrel on that material.
But what if the builder comes back to the architect with a much better prepared extension of time argument, complete with critical paths, facts and analysis? The architect might well say: “This is much better in helping me to decide time.” In other words, the first adjudication helped the builder to get its act together.
If the architect still says no to an extension, you ask whether an adjudicator can decide this quarrel. Is it the same row fiddled with to look different? If it is, a second adjudicator can’t touch it. It would be re-deciding the first quarrel. That is not allowed.
When Vascroft presented its extension of time information for the second time, the second adjudicator refused to let it in. He said it was a retread. Fair enough. So Vascroft came to court. The first judge said Vascroft’s extension of time information was “substantially different” from that offered to the first adjudicator. The Court of Appeal agreed. So it is now open to Vascroft to bring its all singing-and-dancing set of arguments back to the architect and the adjudicator.
The wrestling match is all about “successive adjudications”. Is adjudication actually all about the “now arguments”, which are bottled and handed to the decider and not to be added to in the adjudication? And is a successive adjudication the place to bring the same problem but presented in a substantially different way, by reference to an expert’s report, law or evidence? That’s a new “now dispute” “substantially different” from the first … or is it?
Tony Bingham is a barrister and arbitrator. Email him on firstname.lastname@example.org.