Adjudicators would find the task relatively easy. There would be just one issue. It would be simple to sort out and 28 days would be ample.
In practice, few adjudications fit that pattern. Rather than dealing with the arguments one at a time as they arise, the old habit of leaving the problem on one side while getting on with the job has survived. The result is that there is a heap of disputes left over for negotiation at the final account stage. The negotiations do not always run smoothly, and the dispute on the final account is sent off for adjudication. It will typically include issues of delay, disruption, measurement, valuation of variations and a few others as well, all wrapped up as one dispute.
This is a substantially more difficult task for the adjudicator. The dispute is essentially the same as the old-fashioned conflict that took many months to process through arbitration, but now it has to be done in 28 days.
Adjudicators naturally wish to achieve perfection, but that may involve a massive amount of work. The Construction Act gives them the right to take the initiative in ascertaining the facts and the law, but this tempts them to start enquiries that will lead to even more work than just considering the volumes of material presented by the parties.
In many cases that approach will be completely impractical. So then what? There was a suggestion by Judge Humphrey Lloyd in Balfour Beatty Construction Ltd vs London Borough of Lambeth that if the parties were not prepared to extend time sufficiently, the adjudicator should decline to make a decision and resign.
The judge's comments did not suggest that adjudicators should resign if they could not reach a correct decision. He said that they should resign if they were not given enough time to conduct the adjudication in accordance with natural justice. Both parties had to have an opportunity to present their case and to answer the other side. Resignation was not suggested as a way out for adjudicators who think that they have been given too difficult a task.
So, what should an adjudicator do when asked to sort out a complex dispute with, say, 500 different valuation issues and a few time problems to boot?
Well, they should give each party a proper chance to explain its case. That should not take long. They will not be dealing with a claim, which may not have been discussed in any detail before, but a dispute, which means that there must have been some discussion already. Adjudicators can take the initiative, but are not under any duty to the parties to research the evidence themselves.
Then they make the decision. There is nothing wrong with a decision made on any of the following bases, so long as both parties have had an opportunity to have their say and the adjudicator has been even-handed in dealing with them:
- The claimant is paid 100% because the case has been demonstrated clearly.
- The claimant wins nothing because the case has no basis.
- The claimant wins 60% of each item claimed because the case is generally sound but there seems to be a general overstatement of value.
- The claimant wins 80% of one category of items and 20% of another.
- Any combination of the above.
An arbitrator might be seriously criticised for adopting such a cavalier approach, but an adjudicator who makes a decision in the round because a perfect result is impracticable is doing the parties a better service than one who either resigns or incurs huge fees trying to achieve the impossible.
John Redmond is head of construction at solicitor Osborne Clarke in Bristol.