One must remember that adjudication has become, in most construction cases, the final decision-making process for disputes. Although the option may be open for parties to proceed to arbitration or litigation, experience suggests that, whether they are happy or not with the decision made by the adjudicator, they are usually prepared to live with it. This is hardly surprising. The costs of litigation or arbitration remains prohibitive and, once parties have been furnished with the decision on their dispute, they are by and large pleased that the matter has come to some sort of conclusion.
Given the above, there is all the more reason that the quality of the decision-making must be high. It should not be necessarily worse than the decision that an arbitrator or judge would have reached. As far as possible, adjudicators should be formulating their decisions in the same way a judge or arbitrator would. Any other suggestion undermines the whole basis of the process and discredits the industry. Parties to construction contracts have a right to expect that their disputes will be dealt with properly and not by finger-in-the-air justice, as Redmond seems to advocate. To be fair, adjudicator nominating bodies have recognised this and many have taken strides to improve the quality of adjudicators on their panels and to vet performance.
Redmond suggests, for example, that there would be nothing wrong with a decision made by an adjudicator that states that the claimant wins 60% of each item claimed because the case is generally sound, but that there seems to be a general overstatement of value. Thankfully, I am not aware of an adjudicator ever making a decision on such a basis. An adjudicator is appointed to resolve disputes. What possible justification can there be for reaching a decision which, on the face of it, admits to being wrong?
One approach might be, as Judge Humphrey Lloyd suggested in Balfour Beatty Construction Limited vs London Borough of Lambeth, that if the parties are not prepared to extend time sufficiently, the adjudicator could decline to make a decision and resign. My preference would be for the adjudicator to make a partial decision on those parts he has been able to determine, leaving the balance either undetermined (to be the subject of a possible subsequent adjudication) or preferably rejected.
Yet even this scenario should not arise. This is because, in practice, a good adjudicator who knows they cannot determine the dispute properly in the time available usually requests that the parties to extend that time. Most parties also agree to do so. Indeed, experience suggests that it is a very foolish claimant (or claimant's adviser) who refuses to give the adjudicator more time, as they risk the adjudicator not making a decision or rejecting that part of the claim they have not been able to consider. The situation Redmond advocates need never occur and should not be encouraged. Most adjudicators do not appear to decide disputes on such a basis, although where reasons are not given, one can never be sure.
Claimants should also be deterred from referring large and complex disputes to adjudication. They should not be encouraged to do so by the fact that if they put all the good claims in the first 10 Lever Arch files, the adjudicator is likely to take a similar view of the balance of the claims in the 10 files he did not have time to read.
Main contractors, especially, have been criticised for inserting provisions in contracts that deter parties from bringing dodgy claims. But who can blame them when one considers Redmond's advice? Everyone must work together to perfect the adjudication process, to improve the conduct of the parties and their representatives and most importantly to assist adjudicators in their difficult role. Redmond's advice is simply likely to perpetuate poor decision-making.
Nick Henchie is a solicitor in the construction and engineering group at Mayer, Brown, Rowe & Maw and can be contacted at firstname.lastname@example.org.