Tony Bingham Half a dozen Appeal Court judges have recently gone on the record to explain what adjudicaton is all about. What a pity they all got it wrong...
Six recent High Court judgments from three separate judges have run up a whopping great flag on a whopping great flagpole. Same flag each time. Six reiterations of what the Court of Appeal thinks adjudication is. A sort of unanimous declaration that “we hold these truths to be self-evident, that all men are created equal and know what adjudication is. That they are endowed by their creator with knowledge of what adjudication is, being an inalienable right of life, liberty and the pursuit of money”. What adjudication is was recited in Carillion Construction vs Davenport Dockyard, now one year old, and in six subsequent judgments.
Well, the declaration is not right. Nor is the declaration about what we adjudicators are doing. The declaration is not what the industry practises or wants. The learned Court of Appeal judge who made the declaration is a tad remote from what we do.
Now I’ll tell you what he says it is, but first remember: this declaration arises out of a key ingredient. The dispute is supposed to be decided in 28 days under a procedure that no judge was ever taught at law school, nor ever practised in court.
That context persuades the high level judge that “the task of the adjudicator is to find an interim solution that meets the needs of the case”. On reading that, a leading adjudicator said to me: “What the hell is that supposed to mean?” Another said a rude word. The declaration goes on to say: “The need to have the ‘right’ answer has been subordinated to the need to have an answer quickly.” As for the disappointed loser in adjudication, the declaration blithely says: “He can take legal or arbitration proceedings in order to establish the true position.”
I know no construction industry adjudicator that subordinates the need to have the right answer to the need to have a quick one. As for finding an “interim solution, which meets the needs of the case”, I’m flummoxed by that statement. If it’s a coded message, saying: “Look lads, take a look, take a sniff, hold a wetted finger to the wind and plump for one side or the other” well that ain’t on. Yes, it’s tempting to poke fun at the 28-day timetable – particularly when you remember that Brunel’s Great Western Railway court case took 28 years.
Yes, I know that adjudication cuts corners compared with litigation and arbitration. Yes, the adjudicator even takes short cuts, but none of that means the adjudicator founds his decision on random choice or personal whim. Nothing is arbitrary.
In most cases it is easy to decide even complex disputes in a short time, provided the parties have done all their quarrelling before calling in a referee
Oh, by the way, before I forget, very few adjudicators now stick to the 28 days. The parties almost always “meet the needs of the case” by fitting a timetable to the nature of the dispute. Moreover, in real life, it’s invariably the adjudicator that guides the parties to the right timetable.
I have said that about the timetable because the declaration has a throwaway line: “The Scheme was not enacted in order to provide definitive answers to complex questions. Indeed [and this is the throwaway line], it may be open to doubt whether parliament contemplated that disputes involving difficult questions of law would be referred or whether such disputes are suitable for adjudication.” Well, in real life, those complex disputes and difficult questions of law work beautifully in adjudication. We either revamp the timetable or we coax the two parties to first rehearse their dispute then, and only then, begin adjudication.
That is the crucial point missing in the thinking of those who don’t practise as adjudicators. Believe me, in most cases, it is easy to decide even a complex dispute in a short time, provided the parties have done all their quarrelling before calling in the referee. It’s even easy to test evidence with an oral hearing, with experts, with lawyers. But not at all easy if you come to adjudication and use the adjudicator’s time to develop your case. That is plain daft. “The time constraints within which the adjudicator is expected to operate” are proof of that.
Adjudication is a skilled job. When evidence is in conflict, the adjudicator decides which witness is more convincing; when they hear oral evidence, they decide which witness is more convincing; when they hear legal argument, they asks which party, A or B, is more convincing.
The Court of Appeal declaration says:
“The task of the adjudicator is not to act as arbitrator or judge.” Well I disagree with that, too. To adjudicate is precisely what arbitrators and judges and adjudicators do.
Tony Bingham is a barrister and arbitrator