The yell was a protest that McAlpine was introducing issues and so-called disputes that had not been raised prior to calling the adjudicator. First, said Transco, that's unfair because arguing new points in the actual adjudication doesn't give anyone a chance to consider them properly. Second, the rule is that only a dispute can be adjudicated. A claim isn't necessarily a dispute, is it? So it put in its adjudication response with the "unfair" label stuck to the cover. And for good measure, it added that the other side hadn't put in any evidence to back up its new points. McAlpine replied. It said, "If it's evidence you want, here it is!" Five hundred pages hit the desk. Transco squeaked "Unfair!" again. The adjudicator pressed on.
Before we go any further, let me tell you what had transpired. McAlpine's case was that it was owed £70,000 interest on late or undercertified interim payments. Transco's response was that McAlpine had no evidence to prove the payments were bad, late or whatever – hence the 500 pages. Having put their case in the referral, McAlpine wanted to make it better because Transco wanted proof. But that meant the adjudicator had to examine the background story about "wrong/late" certificates. He took the initiative to ascertain the facts and the law and McAlpine hit his desk with another 1000 pages of evidence! Transco, by now hoarse, yelled "Unfair!" and the adjudicator pressed on.
This business of adjudicators taking the initiative is ever so dangerous if one of the parties can’t answer in the brief time available
This business of adjudicators taking the initiative is ever so dangerous if the initiative makes a poor case into a good one or comes up with a case that one of the parties can't answer in the brief time available.
When the adjudicator eventually awarded most of the interest to McAlpine, Transco went to the watchdog judge. The judge saw that although the adjudicator meant well, he had probably allowed unfairness and had probably gone beyond his remit. It wasn't for the adjudicator to alter the terms of the referral to help the parties conclude the matter. Damn right. That's rather like making the goals wider so as to get the game over without going to extra time. Anyway, he would not enforce.
Now then, the judge has give adjudicators some pointers. Nine of them. You can use them when this type of jurisdiction yell crops up or where further evidence is tendered in the course of the adjudication. They are:
- What issues were discussed between the parties before the adjudication?
- What was the dispute referred after the defendant responded to the claimant?
- What was the basis of that dispute?
- Has the adjudicator decided the issues referred?
- Were new issues raised in the course of the adjudication (this might be the same dispute but put on a new or additional basis)?
- If so, did the other party object?
- Was the objection one that goes to the fundamental nature of the dispute referred?
- If so, does the objection apply to the fairness of the procedure?
- If there is a breach of the procedure, does it significantly affect the fairness of the decision?
Can you think of a 10th? Come to that in a moment. In real life it is always – yes, always – the case that party A or B or both will explain their position with a few extra jollops of argument, evidence and law. The other fellow will want to respond; that's only fair. But, if he can't respond at speed, either the timetable or the added jollops have to go. Make up your mind. I inject a simple device; I insist that if the parties want to continue knocking the ball across the net, carry on; so be it. But, I always get 21 days thereafter to decide on the arguments in their exchanges.
Tony Bingham is a barrister and arbitrator