We must make sure that lay representativaes in adjudication have adequate knowledge of the law and the process
As the recent Mills-McCartney proceedings reminded us, one of the cornerstones of our legal system is that parties have the right to represent themselves in legal proceedings, and long may this continue. This same cornerstone applies to adjudication – and many parties represent themselves successfully.
Rupert Choat made the point a few weeks ago (25 January, page 62) that adjudication has become “too technical” and “too legal”. I disagree with Rupert to an extent because, in my view, the guidance of the courts has in the main led to greater certainty in the process. However, I acknowledge that this makes life harder for unrepresented parties.
Unrepresented parties are therefore faced with the question of whether to appoint a representative. Unlike legal proceedings there are no restrictions on whom parties can appoint to represent them, and quite right too – have come across many excellent non-legally qualified representatives who can hold their own against some of the best lawyers.
However, there is a growing problem with some non-legally qualified representatives who simply do not know enough about the law of adjudication. These lay representatives can be even more dangerous than the unrepresented parties because they think they know the law. At least with an unrepresented party an adjudicator knows they are likely to lack legal knowledge and can manage the proceedings appropriately. I have come across two cases recently when lay representatives have made basic, yet fatal, errors in presenting their clients’ cases.
In the first the referring party’s representative forgot to include those magic words in the Notice of Adjudication, “… or such other sum as the adjudicator may decide”, and then failed to present a cogent argument to persuade the adjudicator that he could award a sum other than that claimed. In the second, the referring party’s representative simply did not understand the concept of proving his client’s case with the use of evidence.
Unsurprisingly, the referring parties lost in both cases – not because they necessarily had a bad case but because they had bad representation.
Now, some might say that is fair enough and you get what you pay for. However, my concern is that these parties will have lost confidence in adjudication. The parties are unlikely to blame their representatives because they may not understand why they lost. However, I would bet that neither party refers a dispute to adjudication again.
I have come across two cases recently when lay representatives have made basic, yet fatal, errors
So, what can be done about the problem of representatives who lack essential knowledge of adjudication? The answer is certainly not to put restrictions on who can represent parties in adjudications – most lawyers would acknowledge that it is not financially viable to use them to deal with all disputes. To do so would probably kill off most lower value adjudications.
Could better training be the answer? There is certainly a plethora of adjudication courses on offer from the likes of King’s College London, the Chartered Institute of Arbitrators and the College of Estate Management, but lay representatives cannot be forced to attend such schemes.
Likewise, improving the education of clients could be a difficult message to communicate to the smaller contractors and subcontractors that are really affected by this problem.
There is no one simple answer, but I think I might know one thing that would help. I would like to see a collaboration of all the organisations interested in adjudication, not only to discuss issues such as the one I have outlined but others, too. There is no “one voice” in adjudication, and I believe this could be essential to maintain the construction industry’s confidence in the process.
The Construction Umbrella Bodies Adjudication Task Group has produced guidance and undertaken a review of the adjudication provisions under the Construction Act, and we have seen nominating bodies form the Collaborative Training Group and hold master classes for the training of adjudicators.
But collaboration needs to go further so it reaches the parties’ representatives as well as adjudicators. The involvement of all interested parties in this collaboration should ensure adjudication continues to be the industry’s preferred method of resolving disputes.
Jonathan Cope is a director of technical and legal consultant MCMS