The nature of the beast

Come to this public lecture. It is entitled "The Construction Act: Are We – or the Judges – Taking Wrong Turns?" and it is being given by a lively chap. Professor Phillip Capper is head honcho on the construction law course at King's College, London. It is clearly not just me who is still trying to fathom what adjudication is.

Journey back with me eight years. That's two before the Construction Act and statutory adjudication came into force. We had to compile panels of adjudicators ready for the rush. So we began "training" people.

Bingham was a tutor, and some of my fellow tutors were soon at odds with me. I thought these newfangled adjudicators were in the business of deciding the rights of disputing parties, dealing with evidence and law and stuff. I agreed that the procedure was not at all like the formal rigmarole of arbitration but I argued that the adjudicator had to decide according to contract law in the manner of an arbitrator.

My fellow tutors thought that the adjudicator was merely a reviewer of the architect's certificates and the like. In short the adjudicator performed their role as did, and still does, the architect or QS. They pointed to Hounslow vs Twickenham Gardens (1978), which discussed the certifier's job in legal terms, such as whether "natural justice" applied, and how legalistic they had to be. The court decided that the certifier was unfettered by principles of natural justice or judicial process.

So, an adjudicator was a certifier for all purposes. Natural justice only applied in a judicial situation and that was not the case with adjudicators. The shorthand message to adjudicators was to behave as might the job architect, or engineer, or QS.

We can expect the court to scrutinise the quality of the adjudicator’s handling of the dispute more and more

My own discomfort arose after a case called John Barker vs London Portman Hotel (1997). Here it was argued that the architect's extension of time was binding. That was correct in that particular case. But the court was twitchy about how someone making a binding decision between A and B reached their decision. Back came all the arguments about not just being fair, but being seen to be fair. The court decided that the parties to a contract containing a binding decision-making process intended the decision-maker to be under an obligation to act lawfully and fairly. And the court could review the decision-making process to see if it was fair. In the Barker case, although the decision was correct, the process was given the thumbs down because the binding decision-maker did not carry out a logical, methodical analysis of the extension of time.

I was worried that if one of these new-fangled adjudicators was similarly offhand when making a decision then the court would give it the heave-ho. But my colleagues countered that the adjudicator's decision was pro-tem, perhaps no more binding than the architect's certificate. So we proceeded with the idea that natural justice didn't apply in adjudication.

Then, oh dear, the judges sent a signal. It was dangerous to proceed with the mere certifier notion. The adjudication process is not a triangular relationship of of adjudicator and A and B. No, it is a rectangle. The judge plays a major role and they are being asked to enforce a process that had paid little or no heed to the "fairness" rules familiar to binding decision-making rigmarole. That was not on.