Losing the plot

Given that adjudication is used mainly by subcontractors, you would expect me – an in-house lawyer with a major contractor – to regard it with some dislike. In fact, I am a supporter of it. In general, adjudication has resolved disputes quickly and effectively. If proof were needed, one only has to look at the lack of activity in the Technology and Construction Court and in arbitration.

My concern, however, is that it is showing signs of taking on the worst characteristics of litigation and arbitration, to which it was supposed to provide an alternative. I would highlight three problem areas.

First, adjudicators are showing a willingness to hold full oral hearings of cases. Hearings mean lots of preparation, cross-examination and very often use of counsel, all of which increases costs. Some adjudicators even have directions hearings instead of dealing with the matter by email or telephone conference.

Second, there is still far too much documentation being used. Claimants often put in vast bundles of correspondence, much of which does not relate to the issues in question but is just mud-slinging. The respondent is then faced with the choice of becoming embroiled in the mud-slinging, or appearing to concede ground. Bundles of documentation, including reports by "experts" (often no more than claims consultants acting as advocates) are also part of the tactics.

Third, adjudicators are often going on well beyond the 28 days (or 42 days) that the act allows for the decision. The typical scenario is that one party asks the other side for more time, copying their request to the adjudicator. The adjudicator then expresses the view that agreement would assist matters (obviously this needs the agreement of both parties). The other party then either has to accede, or risk the adjudicator's annoyance by objecting. We ourselves have had one adjudication that has gone on for several months with a number of hearings.

The first two problems are made worse by impressionable adjudicators. If one side increases the stakes by preparing a number of witness statements, expert reports and requiring a hearing with counsel, it may be risky not to respond similarly. Some adjudicators may think that to do otherwise is implicitly accepting that one party has the weaker case. This would not be the position in the High Court, where judges see through efforts to bombard them with excess material and increase the stakes. We need more adjudicators to reiterate to parties who adopt this tactic what the original principles of adjudication were. Witnesses, experts and mass documentation can always await a full trial, if the case goes that far.

Adjudications are going well beyond 28 days. We have had one that has gone on for several months with a number of hearings

So, how can things be improved?

Adjudicators should stifle the urge to hold hearings of evidence. If there is a conflict of oral evidence that goes to the heart of an issue, the adjudicator should consider having just the relevant witnesses present to be questioned by him (with the limited right of the other side to put questions too, perhaps operating a guillotine).

If one party serves a mountain of documentation or evidence, that party should be asked promptly to highlight the key documents on which it relies (note that the Scheme for Construction Contracts says the referring party is supposed to serve with its referral notice only those documents that they rely on). "Expert" evidence should be sifted to establish whether it really relates to a matter on which expert opinion is needed, or whether it is disguised advocacy.

Lastly, adjudicators should set a realistic timetable and then be firm about it. They should discourage talk of extending it (even by consent) unless essential. They should never themselves be the cause of a request for an extension – and should not take cases on if they cannot clear their desks to deal with them.