Dispute resolution is no job for have-a-go amateurs. So five chartered bodies have teamed up to turn adjudicators into contract law enforcement machines
“Well,” said the engineer adjudicator, “it is a fat lot of good me being an expert on secant piling when the dispute between the piling contractor and main contractor is all about waiver, estoppel and acquiesence.” That’s true. adjudication nowadays, more often than not, is about contract clauses, law reports and statutory instruments rather than whether the plasterer’s arris has become confused with the plumber’s elbow. The adjudicator’s tools are Keating, Hudson and Emden, to say nothing of the Building Law Reports and the Construction Industry Law Letter. If the adjudicator doesn’t know that the case list has reached 239 and has already read case 239, they might get a thick ear!
“Adjudicators require judgment and integrity and well-developed people, communication and case management skills,” said Judge Anthony Thornton on this page (12 November 2004, page 56). He went on: “They also have to work under considerable time pressures with limited resources. What is needed is the development of a widely recognised qualification issued by one or more chartered bodies relating to adjudication.” And, blow me, the chartered bodies have listened and done something.
The Chartered Institute of Arbitrators, the Institution of Civil Engineers, the RIBA, the Association of Independent Construction Adjudicators and the RICS have rolled out an initiative that has to get a round of applause. This famous five have produced a training and assessment programme for experienced adjudicators.
The idea is to find out where an adjudicator’s weak spots are and the first session is next month. The message is, don’t come if you don’t already have an in-depth knowledge of adjudication and contract law. I have looked at the programme. Adjudicators will have to deal with complex challenges on a topic called “threshold” jurisdiction. Then there is “internal” jurisdiction, case management, legal principles, contract documents and more. All these topics will be taught then tested.
I love adjudication but I didn’t think it would go this way. I didn’t think it would be much more than some outsider bod called an adjudicator who would check the contract administrator’s certificate or drum his fingers over an engineer’s decision that was thought to be one-sided.
I foresaw a job for a robust certifier. Tosh.
Today’s adjudicator is required to be fully acquainted with building and civil engineering contract law. No, he doesn’t have to sport a law degree; nor is he to be qualified to give legal advice; nor is his job to tell the parties what the law is. All he has to have is a damned good knowledge of the umpteen aspects of law of contract and law of evidence as well as (according to the famous five) a knowledge of tort, a knowledge of the rules of statutory interpretation, a knowledge of interpretation of contract. How much? Oh, about enough to be familiar with any legal point that is argued by the parties or their legally qualified representatives. That’s not the same as taking an LLB; it’s more like being able to instantly recognise an elephant when it comes at you. The adjudicator who is also a QS, architect, engineer or plumber has to show that he knows what the blazes is estoppel by convention. Just to be sure, the famous five’s assessment will include a multiple-choice legal exam.
And adjudicating isn’t just knowing about your technical territory or loads of building contract law. It’s knowing how to manage a high-speed 28-day dance. It is frequently this: two solicitors and/or barristers deploying all sorts of arguments at high speed. For the adjudicator, it is like dancing with two gorillas – you only stop dancing when the gorillas say stop. Practice and procedure in adjudication takes some teaching. The famous five are out to teach.
And all this is only a start. The system is working better than was ever expected, save that some adjudicators haven’t kept up. They now have a choice: catch up or drop out.
So if you are an adjudicator and about to go on holiday, do have a nice relaxing time but sneak the five volumes of Emden’s Construction Law into your suitcase.
I foresaw a job for a robust certifier. Tosh. Today’s adjudicator is required to be fully acquainted with building and civil engineering contract law
Tony Bingham is a barrister and arbitrator specialising in construction, firstname.lastname@example.org