With the arrival of the Construction Act, along came adjudication. Finally, some guidance on the subject has also been published.
It has become popular to refer to events that change forever the way in which matters of importance are carried out as 'defining moments'. One such defining moment was 1 May 1998, the date on which the Construction Act came into force. The resolution of disputes in the construction industry will never be the same.

For those who act as adjudicators, it has been a rapid learning curve and the Construction Industry Council has decided it is high time that there was some guidance on the manner in which they carry out their task. Hence Guidance for adjudicators, published by the Adjudication Task Force in July 2002.

Natural justice
The need to comply with the rules of natural justice means that an adjudicator must act in a manner that is fair in all the circumstances ie the adjudicator must be impartial and act independently. It is not necessary for actual bias to have occurred, merely a real possibility that the adjudicator is biased. Nobody could have much objection to this suggestion as the courts would be unlikely to enforce a decision if there was a real possibility of bias.

Unfortunately, the Guidance goes on to advise that if the adjudicator is aware of any connection, however remote, with either party they must notify the parties and consider refusing the appointment. Construction is a relatively small industry and the likelihood of the adjudicator having some remote connection with one of the parties is a distinct possibility. There are many adjudicators who will take this advice literally. If the adjudicator considers it is appropriate to contact the parties, the respondent is likely to use it as an excuse for delay.

The second aspect of natural justice is that each party has a reasonable opportunity to present its case. This does not imply that an oral hearing is necessary due mainly to the time factor.

Challenges to jurisdiction
One of the main ways to avoid the consequences of an adjudicator's decision is to argue that there is a lack of jurisdiction. Typical matters raised are whether the contract is a construction contract as defined in the Act or the action is a construction activity. Other examples of challenges are the absence of a dispute and appointment by the wrong appointment body. The Guidance gives good advice. Seek the views of the parties, reach your own conclusions and, if satisfied of having jurisdiction, get on with it.

Intimidatory tactics
Bullying tactics seem to be on the increase. Threats to take no further part in the process or to refer the matter to court are fairly common. Spurious challenges to jurisdiction, and threats to take legal action against the adjudicator personally or make a report to their professional institution, are not unknown. The excellent advice in the Guidance is to recognise such tactics early and counter them fairly and firmly, but always to remember who is in control of the procedure.

The Guidance provides some very helpful advice. It is hoped, however, that it is used as guidance and not as rigid rules

Documents
When representing a party in arbitration proceedings it is usual to provide belt and braces. The situation in adjudication, due to the short time frame, is different. It is essential to present the case in a succinct manner, with only the minimum of referral documents, it being unhelpful to overwhelm the adjudicator. If documents are unmanageable and plentiful, not only does this cause difficulties for the adjudicator but it can also make it awkward for the other party to respond within the timescale.

One of the suggestions is to seek extra time. Attention is also drawn to paragraph 13 of the Scheme for Construction Contracts, which allows the adjudicator to give directions as to the length or quantity of written documents.

Reasons for decision
The adjudicator is obliged to give reasons for their decision if required to do so by the terms of the agreement or, where silent, when requested by one of the parties. There is always the possibility of receiving a request late in the process or even after the decision has been given. The advice is for the adjudicator to set a date at the outset by which any request to give reasons must be made.

Accidental errors
Often the adjudicator will notice an error in their decision after it has been sent off to the parties. On the other hand, errors that are obvious in the wording of the decision are usually drawn to the adjudicator's attention by one of the parties.

The Guidance states that there is power for the adjudicator to correct an error that arises from an accidental error or omission, or to clarify or remove any ambiguity in the decision provided it is done within a reasonable time. A suggestion is made that if the decision involves complex arithmetical calculations, it is worth considering issuing a draft decision to the parties a short time before the date on which the final decision is due, inviting the parties to scrutinise it for possible errors.