STATE YOUR CASE — Tony Bingham says arbitrators, judges and adjudicators do the same job, but the timescale of adjudication makes the process markedly different, argues Nick Henchie
In his article (1 December), Tony Bingham disagreed with the analysis that three judges recently made of adjudication, and he concluded that adjudicating is precisely what arbitrators and judges do.
I find myself agreeing with the judges in their assessment of adjudication. In general, I would accept that the process has grown and developed over the years, and is working well for the disputes for which it was intended.
However, users of the process should understand that there are fundamental differences between what judges and arbitrators do, and what adjudicators do. In my view, equating the two does a disservice to judges and arbitrators and the processes of litigation and arbitration.
For a start, adjudicators must make a decision within 28 days (or longer, by agreement). It is this fact that makes the process so markedly different, and essentially defines the adjudicator’s role.
Tony believes adjudicators who “subordinate the need to have the right answer to the need to have a quick one” do not exist, and yet, in my view, they are 10 a penny. This is what adjudicator’s do – particularly in complex disputes. And it is, in view of the statutory timescale, inevitable.
Further, the notion that some adjudicators don’t simply stick a finger in the air when reaching a decision will come as a surprise to many. There are some well known adjudicators who are regarded as being in the small man’s camp and who invariably find for the underdog, whatever the evidence.
Experts are rarely involved and when they are, they aren’t governed by proper rules of objectivity and impartiality. Their opinions are also rarely challenged under cross-examination
Equally, there are adjudicators at the other end of the spectrum who apply the most rigorous tests of evidence and legal analysis to claims and, more often than not, find that claims are not substantiated and fail them.
There is a broad band of adjudicators who adopt a policy between the two extremes. Those engaged in adjudication know which camp well-known adjudicators fall into. Indeed, it is apparently possible to secure an adjudicator from the right camp if you know your way around the circuit.
Let’s be straight – many complex disputes and difficult questions of law do not work in adjudication. Complex questions of law ought not to be dealt with by lay adjudicators (even experienced lawyers and judges sometimes get these questions wrong) just as complex extension of time or professional negligence claims ought not to be decided by lawyers in 28 days.
Yes, adjudication has opened all our eyes to what can be achieved in 28 days but it is not an adequate substitute for the proper resolution of complex claims.
Even when adjudicators quite wrongly extend the time for decisions, often unilaterally and indefinitely, I can’t recall an adjudicator ordering the disclosure of documents. In modern-day litigation this is a step that can change a case radically.
Equally, experts are rarely involved in adjudication and when they are, they aren’t governed by proper rules of objectivity and impartiality.
Evidence under oath is unheard of in adjudication – perjury is not considered a crime. Telling the truth in adjudication is not in the rules
There are no meetings of experts to narrow issues and their opinions are rarely challenged under cross-examination, as most adjudicators are nervous about doing this.
Evidence under oath is unheard of in adjudication – lying is not perjury therefore not considered a crime. Telling the truth in adjudication is not in the rules.
So, sorry Tony but I cannot agree that adjudicating is what arbitrators and judges do. To decide a dispute in 28 days or a similar period works perfectly well for the claims that Latham had in mind. That is, claims that can be properly decided in that timescale.
When disputes that would take judges and arbitrators two years to resolve are shoe-horned into 28 days, the procedure is far from one that ensures justice is done.
Yes, statistics show that parties often live with the decision. There are many reasons for this but satisfaction with the process is not usually one of them.
Nick Henchie is a partner in the construction and engineering group of Mayer, Brown, Rowe & Maw