Sacred and profane

It’s very rare that I don’t concur with Tony Bingham’s assessment of matters legal. However, Tony’s analysis of the recent decision of Mr Justice Akenhead in Arcadis vs May & Baker (see last week) is one of those occasions.In doing so, I acknowledge that there is really no one better able than Tony to grapple with the “heavier” issues concerning adjudication, and in particular the gulf between the different expectations of the legal community and the construction industry concerning this process. He homes in on this gulf in explaining the Arcadis decision. On the one side stands the non-lawyer camp, which he describes as “secular”, focusing as it does on the “knock about, rough and ready” quick and cheap interim decision-making nature of the process. On the other side of the gulf are the lawyers, invariably hung up on “legal formality” and “even ritual practices”, which he describes as “high church”.

Readers will recall that this was an enforcement case involving two separate adjudication decisions arising out of the same project on which May & Baker engaged Arcadis as its ground remediation contractor. Arcadis pressed the adjudication button the first time and succeeded in getting a significant award. It then proceeded to press the same button a second time but was unsuccessful in securing the appointment of the same adjudicator. The second adjudicator also found in favour of Arcadis and this led to a contested enforcement application in the Technology and Construction Court. There were two central issues in this case and the one that excited Tony concerns was what he describes as the novel question whether a party to an adjudication should be entitled to seek to rely upon the decision of another adjudicator in a previous adjudication involving the same parties and the same project and common issues.

In approaching this question, it was May & Baker, who came over all “high church” by seeking to prevent the use of the first decision in the second adjudication, taking technical points regarding the inadmissibility of the decision as evidence. After all, how could it be relevant to a future dispute, they questioned. Meanwhile, over in the secular corner, Arcadis argued forcefully that the independent view of “the first ref” on matters with which “the second ref” would have to deal in his decision could not possibly be described as irrelevant.

May & Baker’s arguments were a pretty cynical and desperate attempt to derail the enforcement, which the judge saw through without any difficulty

Where I part company with Tony on all this is his suggestion that the court’s decision represented a victory of the pragmatic secular approach over the legalistic “high church” approach which involved taking nit-picking legalistic points about inadmissibility. Tony seems to accept that “the argument of irrelevance is right” meaning that “the previous award and its reasoning is inadmissible”. I just do not see that. I find it very hard to understand how a decision of an adjudicator on certain aspects of the same contract which are just as relevant to the new dispute as the old one, could possibly be treated as irrelevant. I see no basis at all for treating the decision in the first adjudication as inadmissible.

Certainly, Mr Justice Akenhead seems to have been in no doubt at all that the decision was admissible in the second adjudication and he gives no impression of feeling that he was having to work hard to override “high church” principles to reach that decision. Indeed, he actually observed, quite rightly in my opinion, that there may well be circumstances in which it would be “positively wrong” for a party not to do what Arcadis had done in this case. That is because a previous decision of an adjudicator on a particular point binds future adjudicators and therefore an adjudicator should of course be given the opportunity to explore the extent to which his hands may be bound in this way.

Tony describes May & Baker’s position here as “novel”. My preference would be “totally without any merit”. The judge quite rightly dismissed this case as just another of those situations where, when tested, it becomes clear that the party challenging enforcement “can not begin to found any justification for not enforcing” the decision.

In conclusion, I do not consider that it does lawyers, or “high church” for that matter, any favours to be associated with the arguments advanced by May & Baker in this case. They were a pretty cynical and desperate attempt to derail the enforcement, which the judge saw through without any difficulty. I do not know what that necessarily has to do with the triumph of secular principles. In my mind, it just comes down to plain old common sense.

Dominic Helps is a consultant for construction specialist law firm Corbett & Co