Few people have had greater influence over construction disputes than Lord Dyson, presiding judge of the TCC from 1998 to 2001. Now he’s been made Master of the Rolls
One of the blokes that have shaped your life in the business of building things is Lord Dyson. How come? In 1998 he became the presiding judge in the Technology & Construction Court (TCC) as Mr Justice Dyson. That’s an important date. In that year the Construction Act, complete with new fangled 28-day adjudication, was born. It was to deal with everyday quarrels in building things. And the first thing that happened is that we began to quarrel about what this adjudication malarkey was all about. Sir John Dyson in the very first case to come to court told us. And in a moment I will remind you. The reason he is in the news today is that he left the TCC to go to the Court of Appeal in 2001; then in 2010 he was hoisted to the giddy judicial heights of the House of Lords.
Then last week he came back down to the Court of Appeal. No it’s not demotion, it is promotion. He is now the Master of the Rolls. That’s even giddier heights of judicial importance. It means that Lord Dyson is much more likely to get his hands on our construction industry cases. That can only be a good thing: he knows his construction stuff.
And another thing, in adjudication case Number 1, he laid down the adjudication law and now 510 cases later no one has said he was wrong. Let me remind you. The case is called Macob vs Morrison. It was a groundwork subcontract at a shopping development in Carmarthen. The adjudicator decided that Morrison, the main contractor, should stump up £300k. Morrison refused, saying the adjudicator had acted “in breach of the rules of natural justice” meaning procedural unfairness.
Dyson’s plain view of adjudication is that errors of law or fact are to be disregarded and only serious procedural unfairness is to be entertained
It was now for the High Court to show the world what we had invented, in short, would the High Court enforce this new thingy? Now then, what Sir John Dyson declared in that case is just as sound today, 13 years later. So pin your ears back. He said: “The intention of parliament … was to introduce a speedy mechanism for settling disputes … on a provisional interim basis, and requiring the decisions of adjudicators to be enforced pending the final determination of disputes by arbitration, litigation or agreement. The timetable for adjudication’s is very tight. Many would say unreasonably tight, and likely to result in injustice. Parliament must be taken to have been aware of this … It is clear that parliament intended that the adjudication should be conducted in a manner, which those familiar with the grinding detail of the traditional approach to the resolution of construction disputes apparently find difficult to accept.
But parliament has not abolished arbitration and litigation of construction disputes. It has merely introduced an intervening provisional stage in the dispute resolution process. Crucially, it has made it clear that decisions of adjudicators are binding and are to be complied with until the dispute is finally resolved.”
Adjudication is only a provisional, cheap and cheerful look-sniff. It’s not the judicial stranglehold procedure as in arbitration or litigation. Judge Dyson’s decision in Macob vs Morrison received full approval in the Court of Appeal. An error of law or wrongly deciding that a piece of evidence is irrelevant or even failing to take evidence into account does not prevent enforcement of the adjudicator’s “wrong” decision or wrong procedural approach. All this springs from Dyson.
These days adjudicators tiptoe through procedural machinery; we strive for detailed accuracy in law and on the facts. It is as though we are simply speeded up arbitrators
Dyson’s plain view of this remarkable construction contract adjudication is that errors of law or fact are to be disregarded and only serious procedural unfairness is to be entertained. There is a real possibility that the new Master of the Rolls never envisaged our 28-day dispute management process being anything more than a rough cheap decision as to which party should have the benefit of the cash until sorted out later. For better or for worse we are now using adjudication in a much more formal judicial manner. These days adjudicators tiptoe through procedural machinery; we strive for detailed accuracy in law and on the facts. It is as though we are simply speeded up arbitrators. I am excited by the “re-appearance” of this judge. What does he now say about this 14-year old dispute management scheme? Have we strayed off-piste?
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple