Judge Coulson ruled recently that a court can pause a case and direct the parties to adjudicate their differences away. Which, apart from anything else, is a real vote of confidence in adjudication …
I crowed with delight when I read this decision. Why gloat? Well, it was because a judge gave adjudication a vote of confidence. How so? He ordered a pause in a dispute that was going to court to let the parties adjudicate. One of the reasons for the stay was that since this was an ordinary final account dispute it was ideally suited to the experienced adjudicator in the frame. Send the judge a prize.
So let me tell you the story. Steel and cladding contractor DGT had an ordinary difference of opinion with main contractor Cubitt Building & Interiors. Everyday stuff. Instead of falling out, DGT called for an adjudicator. The award favoured Cubitt. That dealt with an interim application. Cubitt’s valuation and withholding notice were sound. The adjudicator’s job was only to decide some technical points, but the underlying difference of opinion about the account itself was not part of this adjudication.
DGT then decided to begin an action in the court about the account differences. Cubitt objected. It required the account to be adjudicated: it was a dispute about the account, which had not previously been adjudicated, so stop the litigation. Cubitt reinforced its view by pointing to a term in its in-house subcontract: “Any dispute, question or difference arising under or in connection with the subcontract shall, in the first instance, be submitted to adjudication in accordance with the Association of Independent Construction Adjudicators (AICA) adjudication rules and thereafter to the exclusive jurisdiction of the English courts.”
Truth to tell, it doesn’t matter much whether that is a term in the contract or not. The right to adjudicate is a statutory right. That’s what the Construction Act says. Either party can do it. It is not a “must” until one of the parties makes it so. Cubitt and DGT are in a construction contract. Parliament says if either party wants the other to come to the dance, they will, must, or shall. And no agreement to dump parliament’s law can work. So, it is always open to any party in the face of court proceeding or arbitration or mediation to say “be that as it may, I still want to adjudicate”.
Yes, yes, Cubitt can require DGT to come dancing to the adjudication ball. But can Cubitt ask the court (politely) to clear off in the meantime?
That’s all very interesting. But then ask, what’s the score when Cubitt wants the litigation stopped or put on pause? Yes, yes, Cubitt can require DGT to come dancing to the adjudication ball. But can Cubitt ask the court (politely) to clear off in the meantime? The answer is yes, if it makes sense. Judge Coulson explained how this all works.
First, it was not necessary for Cubitt to have those contractual rules. The right to adjudicate was inviolate for both parties. The key was how sensible it would be for the High Court to let an adjudicator first do their stuff. And here is where there was a huge test for adjudication, adjudicators and adjudicating. Let me tell you this: if this judge, a judge with enormous experience of adjudication from the early day both as queen’s counsel, then a High Court judge, if he had thought we had a half-baked, loony system, he would have given no thought to pressing the pause button in his court. He would have pressed on. I for one would have been crestfallen to say nothing of being fed up. But instead I’m crowing.
The judiciary has been watching this process. And just occasionally it has given us a nudge. And just occasionally we have listened. The experience of adjudicators is now massive. So, too, organisations like the nominating body mentioned here, the AICA. It has worked tirelessly to review and train its panel of adjudicators. The quality of its list is top notch and the quality of decisions gets better and better.
The real “trick” was to stop being a “big head” adjudicator. We are not here to decide what’s right nor what ought to be the answer. We have learned to decide quarrels only on what you two are arguing at this moment. We just decide which argument is best.
If the High Court is willing to trust the adjudicators to adjudicate, that’s the biggest compliment of all, and by the way, if the adjudicator’s decision goes with the other chap instead of you, it’s not because the other chap is right – it’s just that his argument is more convincing than yours …
Tony Bingham is a barrister and arbitrator specialising in construction