It took just 22 days for Mr Justice Jackson to enforce the adjudicator’s decision in the Devonport case. So if the courts can work that fast, why adjudicate at all?
The article on the Devonport case (20 May, page 52) looked at the small print of a decision. It confirmed adjudicators’ discretion to award interest under the Construction Act Scheme, and that you need good reasons to resist enforcement of adjudicators’ decisions.
But what is particularly interesting is the way the case was managed by the head of the Technology and Construction Court, Mr Justice Jackson.
The statistics speak for themselves. The case was worth £12.3m. There were two sets of proceedings, one to enforce the adjudicator’s decision, the other to have it declared of no effect.
After written evidence and documents, the oral submissions before the court lasted two full days. The period from the start of proceedings to delivery of judgment was, wait for it, 22 days. That is six days fewer than adjudications are supposed to take and at least 10 fewer than most I have heard about or fought. The Devonport adjudicator published his decision after 72 days.
Of course, we do not know what the costs of the proceedings were, but they ought to have been limited by the shortened timetable. Okay, we shouldn’t get over-excited because, after all, enforcement proceedings should not take long.
But there is a certain irony in all of this. One of the factors that led to the introduction of adjudications was the perceived sluggishness of the civil justice system. All the to-ings and fro-ings and manipulations of procedure to keep creditors out of their money for as long as possible had to go, and a new dispute resolution forum put in their place.
Several years later, adjudication is proving a storming success. True, it is open to over-complication and over-legalisation. You probably won’t get your costs back and you do have to pay the adjudicator (sometimes even if you win). And surely adjudication was not meant to deal with bigger value disputes such as Devonport. But even then, adjudication can and does produce the right results in tandem with the TCC.
Critics of the process might say that some of the court’s decisions about the grounds for resisting enforcement of adjudicators’ decisions have not exactly helped keep adjudication on the straight and narrow, or in complete sync with the spirit of the Construction Act. Mr Justice Jackson said: “One can detect in the first instance cases over the past six years some slight differences in emphasis and approach.”
He proceeded to give a very succinct and helpful summary of four basic tenets affecting adjudication, which are worth setting out here:
- Adjudication does not finally determine anybody’s rights (unless the parties agree).
- Adjudicators’ decisions should be enforced, even if they result from procedural errors of fact or law.
- Where the adjudicator acts outside their jurisdiction or there is a “serious” breach of natural justice, a decision will not be enforced.
- Technical defences should be examined with “a degree of scepticism” and judges must examine alleged errors before accepting that they constitute excess of jurisdiction or a serious breach of natural justice.
But the Devonport case is not just a restatement of key principles in adjudication. It should also prove to be a turning point. It looks likely to raise the entry-level threshold for those who want to resist adjudicators’ decisions.
Mr Justice Jackson’s approach demonstrates that the court can provide disputing parties with speedy access to justice through litigation.
And the irony? Had all litigation been handled as well as this, we might never have needed adjudication in the first place. We might never have needed another tier of “interim” dispute resolution.
And we might never have had that suspicion deep down that there might be an element of palm-tree justice – that is making decisions solely on the circumstances of individual cases – in adjudication. Perhaps there’s no point in being wistful.
What will happen in the future if courts continue to adopt this approach? My bet is that we might see more disputants deciding to use the courts to resolve disputes in the first instance.
Nick Lane is a lawyer specialising in construction at solicitors Travers Smith: firstname.lastname@example.org