Staging an adjudication

The scene is set on a makeshift stage; three men in suits sit around a desk, centre stage. In the middle is Mr Rough Justice, the adjudicator, played by Peter Talbot, a practising adjudicator and adjudication examiner at the Chartered Institute of Building. On one side of him is Mr Bodgit, played by Kelvin Holder, a commercial director of Amey Construction. On the other is Mr Crash – in reality, Geoff Wright, a director of Hammerson Properties. Chief executive of the Specialist Engineering Contractors Group Rudi Klein and Roger Button of solicitor Eversheds are commentating.

In the opening scene Justice chairs an early meeting in the process. The two warring parties are present: claimant Bodgit and defendant Crash. Bodgit has just completed a job for Crash but he has not been fully paid. Crash is withholding the balance. Bodgit is upset, accusing Crash of denying him his money, the lifeblood of his business, and lamenting his difficulties keeping the business afloat. “My Jaguar might be repossessed, Crash,” he wails.

Crash is equally irate. Bodgit had done an appalling job, which, claims Crash, does not merit any payment.

“You’re a cowboy, Mr Bodgit. You don’t deserve to practise in the industry,” says Crash, leaning across Justice towards his enemy.

“My name is pronounced Bojie,” sniffs Bodgit.

Holder and Wright are acting their parts so well that it seems that the two might actually come to blows. The audience is transfixed. Luckily, Justice is on hand to cool tempers, restore order and set the adjudication back on track. He finds that a dispute has arisen under a construction contract, as defined by the Construction Act, and that Bodgit had referred the matter to him. He decides that the Scheme for Construction Contracts applies, so he persuades Crash to accept his appointment and skilfully encourages both parties to sign his engagement terms.

Justice’s next task is to determine the procedure that will enable him to reach a decision within the statutory period of 28 days.

He asks both sides to produce documents, and he orders Crash to produce documentary proof of the damage that he has allegedly suffered, and to respond to Bodgit’s adjudication referral. Finally, Justice will interview the parties’ relevant witnesses.

Justice also decides to take expert advice from an independent specialist on the allegations of defective workmanship. In view of the statutory time limits, Justice decides to obtain this advice by telephone.

Act two of the improvisation takes place at the end of the 28-day period of the adjudication. Justice dispenses justice. He decides that Bodgit is liable for most of the defective workmanship alleged by Crash. Accordingly, Crash has to pay only a small proportion of Bodgit’s claim.

Justice also orders Bodgit to pay most of his adjudication fees. Crash declares himself victorious while a deflated Bodgit looks on, muttering: “I’m going to contact my lawyer.” At the end of the mock adjudication, conference chair Guy Cottam, an arbitrator and a panelist at adjudicator-nominating body the Institution of Civil Engineers, asked the audience for feedback. Most felt that Justice had conducted the proceedings in a pragmatic and sensible way and that his temporarily binding decision had assisted the parties; the consensus was that this mock adjudication had worked.

In his closing remarks, Cottam identified important points. On the basis of data from the institutions involved, the number of referrals to adjudication is increasing rapidly. But many recent adjudications have been affected by challenges to the jurisdiction of the adjudicator, making both parties and adjudicators uncertain of their respective positions. The general mood at the conference was that adjudicators should be empowered (in the same way that arbitrators are) to determine their own jurisdiction.

Most of the conference felt that adjudicators should not award costs, unless dealing with their own fees. Such awards, it was felt, would turn adjudication into quasi-litigation and defeat the object of the process: quick and cost-effective dispute resolution (pending subsequent litigation or arbitration).

But how happy was the party that called for an adjudication? Holder, who had played Bodgit, felt that, given the acrimony between the parties in this role-play, the arguments might well have continued, particularly over the enforcement of Justice’s decision. Consequently, says Holder, we should look out for the next round of this dispute, because Bodgit was not likely to take the decision lying down.