The increasing use and success of adjudication owes a lot to two men. One is Sir Michael Latham, who highlighted this form of dispute resolution in Constructing the Team. The second is Tony Bingham, who, through his columns, has continually promoted its use. Wasn’t it Bingham who first conjured up the image of the referee, the man in black, out on the pitch, ready to blow the whistle when it really counted? It is therefore with some trepidation that I have to say that I am not entirely with him in his comments on the Bouygues vs Dahl-Jensen decision in this week’s column.
You see, even the efforts of Sir Michael and Bingham would have been frustrated had it not been for the readiness of the courts to give the process exceptional treatment. Let us not forget that the bold approach to enforcement of adjudication decisions shown in Macob vs Morrison and Outwing vs MCS, for instance, came as a considerable surprise to many. The courts’ approach in those cases was to adopt a highly purposive interpretation of parliament’s intention in passing the Construction Act, and the treatment of adjudication as a special case in the context of enforcement. Had it not been for this robust approach, no doubt many parties and their advisers would, in the words of Mr Justice Dyson in Macob, be taking every technical point they could “to drive a coach and horses through the scheme” and the act itself. Acknowledging parliament’s intention to make adjudication speedy and effective, Mr Justice Dyson stated that parliament must have known that, in practice, adjudication would lead to rough justice, involving, as it does, a procedure that “many would say [is] unreasonably tight, and likely to result in injustice”.
Returning to Bingham’s analogy of the referee, viewers of Match of the Day will know that the pundits are regularly up in arms about the quality of refereeing decisions. How could the referee have missed the ball going over the line when the action replay clearly shows that it had? Surely it is wrong that an important match should be decided on the basis of such a decision?
Whatever the pundits say, the simple fact is that until the Football Association or whoever changes the rules, so as to permit referees access to action replays, teams are going to have to take rough justice with the smooth. Similarly, with adjudication, if “rough justice” is an unacceptable part of the existing system, the answer must be to lobby parliament to change the rules. Personally, with some qualifications, I doubt whether that is such a good idea.
My experience of adjudication is that the decisions made by adjudicators are every bit as arbitrary as those of some of the more infamous referees. There is a marked diversity of approach. Some adjudicators approach the process as if it were a mini-arbitration, with witness statements and full oral hearings involving cross-examination. Others deal with matters on a “documents only” basis. On matters such as the length of submissions, the amount of supporting documentation permitted and the standards of evidence applied, there is little consistency. Furthermore, the complexity of the issues and the amount of material involved can mean that adjudicators are forced to make decisions under extreme time pressure, and mistakes are inevitable.
My experience of adjudication is that the decisions made by adjudicators are every bit as arbitrary as those of some of the more infamous referees in football games
But, you see, that is the whole point about adjudication. In order to make the procedure work within 28 or 42 days, adjudicators must be complete masters of their own procedures. As far as the parties are concerned, there should be little point in complaining; they should play to the whistle. Of course, as is the case with referees, apparent injustices are inevitable. Were it the case that each injustice entitled the losing party to resist enforcement, then most applications to enforce decisions would fail.
The position is quite different where questions of the adjudicator’s jurisdiction are involved. The statutory adjudicator is a creation of parliament, which has prescribed the sorts of agreement and operations to which the act is to apply.
Adjudicators faced with a jurisdictional challenge obviously have to reach their own decision about whether the act applies. However, as Mr Justice Dyson held in Project Consultancy Group vs Trustees of the Gray Trust, a decision on that question cannot be binding.
It follows that, where an adjudicator has arguably made an incorrect decision about his or her jurisdiction, that is the sort of issue that should be aired when it comes to enforcement. A suitable football analogy, I suppose, would be if a referee started trying to make decisions about matters occurring off the pitch.
If, on the other hand, adjudicators act in a way that seems wrong or unfair, they are nonetheless operating entirely within their jurisdiction. These are all matters that are clearly on the field of play. And, of course, if they get things wrong, the disappointed party is in a much better position than the football team that goes out of the cup as a result of a bad decision. Adjudication is after all an interim process and subject to appeal in arbitration or litigation. Isn’t that a sufficient safeguard against the sort of error that was clearly made in the Bouygues decision? After all, whoever thought justice came without a price?
Dominic Helps is a partner in solicitor Shadbolt & Co, which has offices in Reigate, London, Paris and Hong Kong.