Adjudicators should aim for an ‘industry result’

Adjudication is, and always was intended to be, a rough and ready process. Hardly surprising in a 28-day mad dash. The whole event still has to be a fair hearing, giving both sides the chance to have their say, ensuring an impartial, independent and non-partisan adjudicator. But speed and all of its hazards have eventually become – albeit kicking and screaming – prioritised over perfection. That means unfairness is built in: the court will bite its tongue and enforce an adjudicator’s judgment that isn’t quite tickety-boo. It’s a tad hit-and-miss.

And after more than 25 years of watching adjudication results, I have become convinced the courts have accepted not just a rough-and-ready result but also what I will call an “industry result”. That’s not the same as a judge result. If you want that type of result, skedaddle off to the court instead. So, all you quantity surveyors, engineers, architects and adjudicators, will you please stop playing at being judges. Please relax, and produce a result about which industry – yes, industry – will say “that result is about right”.

Here is an industry result. It’s called Clegg Food Projects Ltd vs Prestige Car Direct Properties Ltd [2025] EWHC 2173 (TCC). Judge Kelly enforced the decisions of QS adjudicator Kevin Shilcock. The dispute on this £24m leisure and retail centre in Bishop Auckland was about interim account #37. The contractor, Clegg Food Projects (Clegg) priced eight variations, but employer Prestige Car Direct Properties (Prestige) cut the valuation by £738,469. 

The TCC is willing to trust us long-serving dispute deciders to detect what’s good and what’s bad in the parties’ arguments, and to decide the case in all fairness on industry norms

The adjudicator had to decide who was right or “such other sum as the adjudicator may decide”. And he did. A few other topics came in, such as extension of time, liquidated damages for delay. The adjudicator decided Prestige was to pay £542,000. But it resisted. The court beckoned.

Let me try to explain why the case expertly argued by Prestige failed to torpedo the award by the adjudicator. The case put in the adjudication was all about the value of the variations according to Prestige and, as against that, the value according to Clegg. But the adjudicator went off on a frolic of his own and rejected both sides’ values. Instead he chose his own. 

Worse still, said Prestige, the adjudicator had kept his thinking to himself, up his sleeve, and it was argued it was unfair not to reveal his thinking so that the parties could push back in an attempt to dissuade him from his own conclusions. 

Cleggs’ barrister played a daring blinder. She said that her opponent was “nit-picking”. Her opponent’s arguments, she told the judge, were “excessively granular” and “were, in effect a smokescreen”. The loser, in other words, was complaining that this was unfair play, a breach of natural justice – but such objections, according to his opponent, amounted to “nit-picking”.

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There are two reasons why the judge enforced Mr Shilcock’s decision. Firstly, the remedy sought not only included the sum called for by the two differing parties, but also said “or such other sum as the adjudicator may decide”. But there is a good, if more subtle reason. The adjudicator did what the industry does all the time. He decided the value on an industry norm. He looked and trusted his own judgment as to what an item was worth. 

Mr Shilcock is an adjudicator who has been around the block several times since 1998, when he had his first adjudication appointment. He, and I, are increasingly confident that the Technology and Construction Court (TCC) is willing to trust us long-serving dispute deciders to detect what’s good and what’s bad in the parties’ arguments, and to decide without being in fear of being marmalised by a judge; just decide the case in all fairness on industry norms. The Kevin Shilcocks of this adjudication community are brave enough to decide these disputes without pretending to be judges of the High Court.

Yes, natural justice (you and I call it fairness) has a role to play, but time pressure rules the roost. Shortcuts are inevitable. The key case from the Court of Appeal is Carillion vs Devonport, where it was said: “It is only too easy in a complex case for a party who is dissatisfied with the decision of an adjudicator to comb through the adjudicator’s reasons and identify points upon which to present a challenge under the labels ‘excess of jurisdiction’ or ‘breach of natural justice’. It must be kept in mind that the majority of adjudicators are not chosen for their expertise as lawyers. Their skills are as likely (if not more likely) to lie in other disciplines. 

“The task of the adjudicator is not to act as arbitrator or judge. The time constraints within which he is expected to operate are proof of that. The task of the adjudicator is to find an interim solution which meets the needs of the case.

“The statutory scheme provides a means of meeting the legitimate cash flow requirements of contractors and their subcontractors. The need to have the ‘right’ answer has been subordinated to the need to have an answer quickly. The scheme was not enacted in order to provide definitive answers to complex questions.” 

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple