The minister is going to set the ball rolling to make one change to Part II of the adjudication provisions in the Construction Act. I will tell you about that in a minute. But Wilson decided not to make any changes to the provisions of "the scheme". Instead, he has given full support to a document called Guidance for Adjudicators – more on that in a moment, too.
The tweaking of the act is to stop a rather unhappy bit of footwork in its tracks. There are one or two contractors that have latched on to the idea of including some small print in their subcontract documents, plainly intended to put the subcontractor off calling for an adjudicator. They require those subcontractors that start an adjudication to pay the legal or other costs of the main contractor, win or lose. Regardless of what the subbies thought of that, parliament took a dim view. So did the industry at large. The minister said he intends to make amendments to the act to put a stop to this.
Now let's look at this guidance. It is rather good. Its 12 pages come from the Construction Umbrella Bodies Adjudication Task , which is under the umbrella of the Construction Industry Council. The guidance covers seven points:
- Procedural fairness
- Challenges to jurisdiction
- Accidental errors or omissions
- Intimidatory tactics
- Unmanageable documentation
- Reasons for the decision
- The parties' costs.
Procedural fairness In legal parlance: "Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances." Lord Reid said: "I would be very sorry to see this fundamental principle degenerate into hard and fast rules." Notice at once, please, that the guidance characterises adjudicators as a "tribunal" and the process as "acting judicially". I confess that I never saw adjudication on such a high plain. I saw it as a certification process, but if the courts are to be called on to enforce the adjudicator's decision, they are uncomfortable unless the procedural fairness is evident "in all the circumstances". Natural justice demands that adjudication is impartial, even-handed, free from actual or apparent bias. As to a fair hearing, the guideline recognises that the 28-day timetable will not allow the procedural "niceties" seen in less frantic judicial or extra judicial activities. But minimum standards are to ensure that each party:
- has a reasonable opportunity to present its case;
- knows what the case against it is; and
- is in possession of all the evidence and information that is adduced against it or obtained by the adjudicator.
Notice that the guidance characterises adjudicators as a ‘tribunal’ and the process as ‘acting judicially’. I never saw adjudication on such a high plain
There is still too much naughty behaviour – such as parties trying to ambush each other. Claimants keep the case up their sleeve until the adjudicator is called up. Respondents are as guilty. Many refuse to say what their argument is until they respond during the adjudication. All that breaches the rule of "not knowing what the case against each other is all about". Adjudicators can be robust about this. As to the fairness of talking to one side while the other is absent, this is acceptable within a useful framework. The guidance asks adjudicators to let the other side know what was said. Fair enough.
Challenges to jurisdiction The guide gives examples of challenges. It asks adjudicators to take challenges seriously. I confess we were a tad dismissive of such challenges at the beginning. It is, however, a disaster for adjudicators to press on, causing significant expense, only to have a court declare the adjudication void.
Accidental errors or omissions The guide helps adjudicators to stop worrying about correcting errors after the decision has been delivered to the parties. Corrections are permitted of accidental errors or omissions, or to clarify or remove any ambiguity in the decision.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on email@example.com.