From boldness to fairness, reaching a successful adjudication result starts with paying heed to seven pillars, as set out by Mr Justice Coulson
The Perfect Adjudicator’s Decision - that was the title of the talk given by senior judge Mr Justice Coulson at the Society of Construction Law the other evening. He described seven perfect pillars and had a few “by-the-ways”. First let me tell you how the judge fits into this adjudication machinery.
He is the fourth corner of the square. Corners one and two are the parties, the adjudicator is in corner three and corner four is the occasional guest appearance of the High Court - there because sometimes corner one or two cocks a snook at the adjudicator’s decisions about the dispute.
The first pillar is “Be bold”. I know that adjudicators are sometimes a tad wimpish; and I know why. So does the judge. It was his first “by-the-way” that covered the point. He comes down like a ton of bricks on the boorish, ill-mannered, bullying attitude of “some” representatives.
“Tackle each issue explaining the analysis of the parties’ arguments and why the decision goes one way or the other”
The snag is, none of us know what effect these barmy louts have on the adjudicator. It wouldn’t surprise me if one day a losing party in an adjudication runs the argument in court that the bullying behaviour of the winner had the potential to distort the independence of the adjudicator. And so set the result aside.
“Be bold” because the act has created a unique jurisdiction. This 28-day sprint is different to the marathon of litigation. The Court of Appeal said of adjudication: “The need to have the right answer has been subordinated to the need to have an answer quickly.” Yes, that’s comforting; but here in our actual world of building and civil engineering disputes, every party wants to explore every angle, argue every point, and wants to bloomin’ well win. I would get a helluva flea in my ear if I said, “I needn’t give you the right answer”. I am not “bold” - I am “boldish”.
The second pillar is: “Address jurisdiction challenges early and with certainty.” It’s not unusual for the respondent to pick on a technical reason for stopping the adjudication in its tracks. Tackle the point, decide it, and don’t let it limp on. Two more “by-the-ways”. First, if a technical challenge can be remedied by repeating the formal rigmarole for putting the adjudicator in place, simply resign and get re-appointed. Second, the judge is not keen when a string of adjudications between the same parties has a string of different adjudicators.
Third pillar: “Identify the issues”. Go further and identify the sub-issues under each issue. Tackle each issue explaining concisely the analysis of the parties’ arguments and why the decision goes one way or the other. Now then, that’s a judge and erstwhile barrister talking. Barristers are trained to spot the issues. It’s not easy. My hint is don’t ask the parties to do it, they’ll Fourth pillar: “Be fair”. Fairness is the sheet anchor of this dispute-deciding business. But it’s easy to be flummoxed by the attempt to balance speed and traditional notions of fair play.
“It wouldn’t surprise me if one day a losing party runs the argument in court that the bullying behaviour of the winner had the potential to distort the independence of the adjudicator”
The basic idea is to dash for 28 days, or at most 42. Mind you, the parties have an absolute right to jointly agree longer time in pursuit of the “right answer”. Truth to tell, it makes no odds to the adjudicator as to overall time, as long as they have reasonable time to fathom the issues, materials, arguments and decide.
Fifth pillar: “Set out a clear result”. Explain each issue and decision. Then the end result speaks the consequences, the remedies, the actions to be taken, the redress.
Sixth pillar: “Be on time”. It’s embarrassing and tiresome for a judge to have to decide an otherwise first-class award is void because it was made one minute after midnight on the final day.
Seventh pillar: “Don’t make silly mistakes.” They happen because of the mad dash and the vital need to beat the clock and by the way some enthusiastic party has sent another stack of lever arch files on top of the stack that sits on top of the first stack.
The final “by-the-way” is fascinating. The judge said the adjudication is a collaborative process … representatives, parties working together to help the adjudicator and the adjudicator working with them. “This is not litigation,” he said. By that I think he means that there is no time for the adversarial process of our UK legal system. So be friends, just like Mr Clegg and Mr Cameron (until you get fed up being friends and revert to type).
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings