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What I don't like about adjudicators!
By Simon Tolson

Paper written for the Adjudication Society
2 October 2002

However one thing is sure, statutory adjudication ⁽¹⁾ has brought to us a greatly changed canvas and as Latham recommended it is appropriately underpinned by legislation stepped down expressly into all standard forms of construction contract. Where not, it can be invoked under the legislation. What we are left with is a process which upon it being exercised provides a temporal yet binding answer in the short term.

So against this background I turn to the theme of this paper: What I don’t like about adjudicators! Don’t get me wrong, by and large in my experience, and I have been involved directly in over 80, the calibre of adjudicator is not bad at all and when compared to arbitration I am sure that I am not unique in drawing up my own blacklist.⁽²⁾ Perhaps what is most worrying of all is the generally low training threshold to “qualifying” as an accredited adjudicator.

With arbitration the passage to Fellowship and chartered status is rather more arduous with the Chartered Institute of Arbitrators’ various filtering mechanisms which tend to weed out those who are not suited for the process which from the commencement of training to the end typically takes somewhere between three and five years all told.

However with adjudication it is quite possible for an adjudicator to effectively qualify from the university of life having self certified involvement in construction for ten years or more and then sitting an appropriate course. In the early days of adjudication such courses often ran for not much more than day. If you were lucky the process of accreditation might have been little more than a workshop session and a simple multiple choice questionnaire at the end. You have then got your pretty little piece of paper and on payment of the appropriate fee the theoretical right to decide disputes under construction contracts once referred.

Little surprise therefore that there have been some problems with the calibre of some individuals who have been let loose on this task.

1. Under s108 of the Housing Grants, Construction and Regeneration Act 1996

2. Which is by no means exhaustive

The Ten Deadly Sins

Rather than choosing ten commandments I have decided to concentrate in this paper on the negative, what I call the ten deadly sins. Ten of the most heinous things which I would like to share with you. I name no names!

I rank them in terms of importance as I perceive them, although anyone on the wrong end of any one of my criticisms has reason enough to be disgruntled with the process and the result.

1. The adjudicators that do not understand the burden of proof or the most basic law of evidence

Make no mistake, the law of evidence is no subject for a few minutes' debate but it is one of the topics which perhaps is ignored at peril by adjudication training bodies. A crash course is essential.

Blackstone, the great legal thinker defined it thus:

That which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue.

You might think that the subject was self-evidently obvious but like most legal subjects, it is rather deeper than any layperson might at first blush assume. Put at its simplest, the issues in every case can be divided into two types. First there are those which are directly relevant to the decision the adjudicator has to make, known as the primary issues of fact. If this were a criminal evidence lecture I would say in order for the defendant to be convicted of theft, the crown must prove four basic facts:

(i) that the accused acted dishonestly;
(ii) in appropriating property;
(iii) which belonged to another; and
(iv) that he intended to deprive that other person of his property permanently.

These are known as the facts in issue.

Proof of facts in issue can be achieved by witness testimony or documents which show directly that the fact is true, or by evidence from which the only proper inference is that the fact is true. This may be aided by corroboration being in dependent admissible evidence tending to confirm the principal evidence is true and the ball is nearly.

The second type of issue relates to evidence which is called in order to prove the facts in issue - the background facts to add meat to then case. This goes to the probity or weight of the evidence to prove the facts in issue.

Most arbitrators here and hopefully the adjudicators will be familiar with the concept of what a claimant must prove by way of legal and evidential burden to establish the case it seeks to bring against the other party and that the burden does not always remain with the claimant throughout. For example the legal burden of proving a contract, its breach and consequential loss lies with the claimant. The legal burden of proving more than a bare denial lies with the other side.

In some circumstances the legal and evidential burdens are on different parties but the general rules is that "he who asserts must prove". This maxim applies so as to require the party who would lose if no evidence where called not just to start the ball rolling by culling evidence to make something a live issue, assuming the dispute has already crystallised, but also prove that that issue should be decided in his favour.

There is then the evidential burden. The way to explain this is perhaps best in context and the example I gave is where a Judge might alert the claimant that the evidence it has put up is not enough to prove a particular issue and by this way show that the submission put to the tribunal on that issue is not probatively sufficient. That is not to say that Judges always give such indications. The evidential burden places a duty on that party to call enough evidence to require the tribunal to consider whether the issue in question is proved, the standard of the evidential burden is that evidence which must be called which would be considered to be proof on the balance of probability.

So to help you, some essential questions adjudicators should ask themselves in every dispute as part of their analysis might be:

(i) What are the facts alleged by the claimant?
(ii) Of these facts, which are disputed by the respondent?
(iii) Of each disputed fact, which party has the burden of proof?
(iv) In respect of each of these facts which is disputed, what evidence is adduced by the party who has the burden of proof?
(v) Is the evidence put up in respect of the disputed facts incontrovertible?
(vi) Of those alleged facts not supported by incontrovertible evidence, what evidence does the party without the burden of proof have to rebuff the allegation?
(vii) Last but not least, on the balance of probabilities, ie on the seesaw test, which party's evidence does the adjudicator refer?

If the adjudicator asks himself these questions he should come to a decision on the facts.

Where some adjudicators have gone badly wrong in my experience is not properly applying a basic analysis to the facts lying behind the dispute. The fact this must be applied to an adjudication and to a process that takes place over 28 days does not denigrate from the relevance of the basic civil evidential rules.

If adjudicators remember to analyse the facts and appreciate that the burden of proof is the obligation imposed by law to prove a fact that is in issue between the parties, they will set themselves up to make more robust decisions. But a word of caution is needed because adjudicators have to be aware that the process that they get involved with more often than not involves dealing with numerous layers of facts which are in issue and the legal burden ie the burden on the party primarily claiming the remedy eg proving the contract, its breach and then consequent rights to extension of time, loss and/or expense or damages, shifts once past the 50% probability mark. Ditto the legal burden of proving a defence eg that a fair valuation has been undertaken, that there is no further entitlement to extension of time, lies with the other party.

There are then some bad misconceptions which some adjudicators adopt. For example, abatement is a defence and not a counterclaim. For a party to be able to rely on its common law right to abate the price he pays for goods supplied or works done, he must be able to assert that there is a breach of contract and that it has directly affected and reduced the actual value of the thing itself ⁽³⁾ so the burden will be on the paying party for example to demonstrate that the work is not of the value claimed because it has not been completed ⁽⁴⁾.

For example, if it is proved the plaintiff was hit by a scaffold clip while walking past a construction site and there is no evidence of where it came from, a court may conclude that it came from the construction site. Another presumption is that the party engaging a consulting architect should generally be safe in assuming that the architect has an obligation to carry out any certification fairly ⁽⁵⁾ when it comes to valuing the works. Another presumption is that where there is no programme, the works will be performed within a reasonable time.

There is then what is known as the probability test. This is something which is applied to individual statements or assertions. For example, in respect of a claim for materials on site the adjudicator must be satisfied that it is probable on the evidence that the costs claimed relate to materials that were on the site.

There will of course be common situations where the evidence between the parties is evenly balanced, one going one way and the others in the opposite direction. Something which is pretty typical of adjudication. So the adjudicator is left in having to make up his mind which of the two he prefers. The answer will lie once again with who has the burden of proof in that scenario and whether on balance the adjudicator thinks the point is made out. As I have already mentioned, the party who asserts must prove. This means that if the adjudicator cannot disseminate between them, the party making the assertion must fail ⁽⁶⁾. If an adjudicator gets into the habit of getting this sort of evidential law wrong then his decisions are unlikely to be the end of the trail and whilst his decision might be upheld in terms of answering the correct question he may soon find he is creating unwelcome ‘precedent’ in his wake.

Make no mistake, the art of evaluating the evidence is of course one which has to be carried out by an adjudicator in a short space of time and non-lawyers need training and experience to get it right. In addition an adjudicator has investigative and enquiry ⁽⁷⁾ powers and should take these up because he has to assess and test the evidence for such things as probability and consistency.

So in short, some adjudicators seem to have problems in deciding the facts, appreciating where the burden of proof lies, assessing the evidence including facts they have ascertained and doing so within the four corners of the contract.

He then has to try and get the law right!

2. Adjudicators that do not decide the matter referred but invent their own agenda and work from their own hymn sheet

There is a tendency amongst a few adjudicators to reconstitute the dispute the subject of the Referral Notice and rebuild the plot.

Any lawyers in the audience will not be surprised to hear that any such move, however well intentioned, should be resisted. It is also dangerous for the party who might think he is benefiting from the adjudicator rolling his sleeves up. Some adjudicators get away with this because they discuss with the parties their understanding of the dispute and insofar as there is any recasting they do so with the parties’ express agreement. But even then there are dangers unless that agreement is categoric for if the adjudicator goes on to decide a dispute other than the one that was referred, he does so outwith his jurisdiction and any such decision will be invalid.

One or two adjudicators have been bold enough at conferences such as this to espouse the benefits of doing so. But a word of warning. Such adjudicators may have been able to persuade most parties before them that this is the way an adjudicator should seize the initiative in ascertaining the facts and the law but it is not his job to play moderator, facilitator and God. It is a parlous route to take.

3. Mellowes Archital Limited v Bell Projects Limited (1998) BLR 26 (CA)

4. See Whiteways Contractors (Sussex) Limited v Impresa Castelli Construction UK Limited (2000) Con LR 92

5. Sutcliffe v Thackrah (1974) AC 727 HL

6. Miller v Minister of Pensions [1947] 2 All ER 372 Denning J said on the evidence which will satisfy a legal burden in a civil case: “It must carry a reasonable degree of probability, but no so high as is required to discharge a burden in a criminal law case. If the evidence is such that the tribunal can say: “We think it is more probable than not” the burden is discharged, but, if the probabilities are equal, it is not.”

7. As in clause 41A in JCT 98; clause 9A of JCT IFC 98

8. (2001) see 17 Con LJ at pages 138-144

The decision in Karl Construction (Scotland) v Sweeney Civil Engineering (Scotland) ⁽⁸⁾ is not a safe authority for adjudicators to rely on if they think differently. Whilst the Scottish Court of Session took the view an adjudicator could decide how best to interpret the dispute and formulate a different question to answer and still further apply the contract terms to it as they saw fit, this decision has to be regarded in my view as perverse since it is not for the adjudicator to reconstruct the dispute, let alone where the adjudicator does so without informing the parties and getting their agreement. Lord Caplin in this case was therefore correct in my opinion to say “when a case is decided even provisionally, on a point which parties may have had no opportunity to address, the Court is left feeling uncomfortable”.

So it amounts to this. If the disputed issue or contention regurgitated by the adjudicator creates a different dispute, ie divergent from the dispute referred, clever lawyers may well find a number of reasons why they can cry foul. Therefore danger lies in the adjudicator trespassing outwith his jurisdiction.

What is more, such a decision may well be characterised as being unfair and in breach of natural justice, to say nothing of article 6 of the Human Rights Act.

8. (2001) see 17 Con LJ at pages 138-144

3. Adjudicators that do not listen

It is said that one of the great virtues of the English legal system is the opportunity it gives to the Judge to tell from what the witness says, how he or she say it and their demeanour in deciding whether or not the witness is telling the truth. Whilst the act of adjudicating is not strictly quasi judicial, the fact of the matter remains that usually there is a considerable volume of information for the adjudicator to absorb and whilst inevitably he must filter what he does take on board, he must not close his ears and eyes. Do not second guess.

Some adjudicators appear not to read what they have been sent by submission or pay scant regard to the detail and refinement of argument and rather more to their own conceptions ⁽⁹⁾. This starkly conflicts with the obligation on an adjudicator: so far as he can within the confined window of adjudication, to reach a decision according to the law of contract pertinent to the dispute referred, not a decision according to the pure merits of the particular case as he perceives it.

Whilst there comes a point in time in an adjudication when the adjudicator must close the door and sit down in a quiet room to prepare his decision, that point in time should really not come much before the last day or two of the process. Up to that point in time, subject to the internal procedures of the adjudication mechanism, he really must be receptive.

In the interests of procedural fairness, his door must remain ajar.

4. Adjudicators that think they are mediators

I have come across three instances where the adjudicator appointed to the dispute has thereafter mooted mediating rather than adjudicating, in one case this was gently put, in two others bluntly. I have always taken instructions on the suggestion and upon advice so far my clients have decided that given the adjudication process has commenced it is a decision of the adjudicator that they want. Cynically because mediation may not achieve an outcome, let alone a satisfactory one, added to which the recognised danger that the adjudicator might disqualify himself from reverting back to his adjudication role.

There is of course guidance now in the shape of the case of Glencot Development and Design Company Limited v Ben Barratt & Son (Contractors) Limited ⁽¹⁰⁾ which considered the dangers when the appointed adjudicator, who was asked by both sides to become a mediator, then resumed the role of adjudicator.

In that case just before a hearing which the adjudicator had convened the parties agreed on a ‘settlement’ and happily advised the adjudicator but in fact the settlement they reached was not quite closed and negotiations failed. The adjudicator agreed to become a mediator, on the basis that he would resume the old role if the process broke down.

After about half a day the mediator persuaded the parties into agreeing on the settlement. However there were still points which remained to be agreed and a legally drawn up settlement would be required.

The adjudicator, by now as mediator, told the parties of his understanding of what he has been elected to do, which was to assist the negotiations and any information provided in those negotiations had been agreed “would not be taken into consideration” in his adjudicator’s role. He went further and suggested that if either of the parties considered the adjudicator’s impartiality had been prejudiced by his involvement in the negotiations, he would then withdraw.

As it turned out, neither party objected. The adjudicator then met with the parties separately in the course of the same day, meeting Glencot in the morning and Barratt in the afternoon. It was only at this stage that Barratt contended the adjudicator was compromised and requested that he stop. The adjudicator took advice. He informed the parties that since he had accepted the process, they had elected to proceed on that basis. Moreover, he had questioned whether his knowledge of negotiations could result in prejudice and as he detected no prejudice, he pronounced he would proceed to conclude the adjudication. He found against Barratt.

Barratt refused to comply with the adjudicator’s decision and Glencot commenced enforcement proceedings by way of summary judgment. Whether Barratt were able to persuade the Judge not to enter summary judgment was dependent on showing the adjudicator’s conduct meant in law he was no longer impartial and therefore his decision unsafe. At his hearing the Judge examined the authorities. He concluded that it did not matter what the actual adjudicator’s state of mind was, his intentions per se were noble, it was a question of how an outsider would perceive the position. The court took a fairly dim view of Barratt’s failure to respond to the adjudicator’s offer to withdraw from the process. Whilst the decision of the adjudicator was not overturned as such it was in the result made the subject of a conditional order. This goes to reinforce the danger of swapping hats.

9. See His Honour Judge LLoyd’s judgment in Balfour Beatty Cementation Ltd v Lambeth Borough Council (2002) BLR 288

10. (2002) 80 Con LR 14

5. Adjudicators that do not share papers sent unilaterally and the general perception of bias caused by such ‘secrets’

Prior to the decision in Discain Project Services Limited v Opecprime Developments Limited (2000) 8 BLR 402 it was not unusual for adjudicators in my experience to hold telephone calls with the parties on separate occasions, ie not necessarily in conference call but usually on the basis that each side was told of the gist of what had taken place during separate telephone conversations. I have to profess that I always had some unease about this process and when adjudicating myself invariably went to some trouble to make sure that in my conduct of the adjudication I was seen to be impartial, open and procedurally fair and kept unilateral calls to procedural ‘housework’.

Discain and Judge Bowsher’s judgment changed the picture and pretty well put the fear of God in many adjudicators. In this case, Judge Bowsher considered the application of the rules of natural justice to adjudication. Having considered the facts, he declined summarily to enforce the adjudicator’s decision.

In that case, the adjudicator had communicated, albeit reluctantly, with one party without relaying the substance of his discussion to the other. The Judge held that that contravened the rules of natural justice as it would lend fair-minded and informed observers to conclude there was a real possibility or real danger of bias.

He said:

Because there is no appeal on fact or law from the adjudicator’s decision, it is all the more important that the manner in which he reaches his decision should be beyond reproach. At the same time, one has to recognise that the adjudicator is working under pressure of time and circumstance which make it extremely difficult to comply with the rules of natural justice in the manner of a court or an arbitrator. Repugnant as it may be to one’s approach to judicial decision making, I think that the system created by the [HGCR Act] can only be made to work in practice if some breaches of the rules of natural justice which have no demonstrable consequence are disregarded ...

If the rules of natural justice had been complied with, the adjudicator might have reached a different decision. If he had reached his decision, different or not, after complying with the rules of natural justice, I would have enforced it. Since the adjudicator did not comply with the rules of natural justice, and since compliance with those rules might have produced a different decision on his part, I declined to enforce his decision … the same principles will apply when the Human Rights Act 1998 comes into force.

Until this decision I feel many adjudicators were far more proactive and bearing in mind the way in which some material is presented to adjudicators, it is hardly surprising that they need to be so as the quality of submission would often be thrown back by the Judge were it to be in court.

The real point that came out from Discain is the Court’s uncomfortable position with any investigation which involves one side alone.

The problem with the decision in Discain is that a lot of adjudicators failed to understand the ratio of the case and certainly assumed that they had to take on the full mantle of natural justice, and as the lawyers will know, there is no neat compartment into which you can safely tuck away that subject. Some of these adjudicators became reluctant to the point of near paranoia to even answer the telephone, unless they knew the other side was on the line at the same time. Many shied away from meetings with the parties. What has not been appreciated is that what Judge Bowsher was in effect saying was that the adjudicator has to be absolutely fair in the refereeing process which he has to undertake in but four weeks and that fairness must be judged within that timescale. I must admit that I agree with Tony Bingham’s stance on this decision and if as an adjudicator one is to get to the bottom of the dispute referred it is a case of walking the tightrope between the parties. There should be no injury or disadvantage created to the other party if one makes a call and obtains information or evidence that is relevant to the decision making role but what he must do is tell the other side what he has asked, what answer he has received and what he sees the relevance of the question going to and ask the other party for their response.

What the adjudicator got wrong in Discain was that he pretty well did everything wrong in terms of not proceeding overtly fairly.

Of course it is a question of fact and degree for as Judge Thornton decided in Woods Hardwick Limited v Chiltern Air Conditioning 2001 BLR 23 “the statutory requirement to act impartially requires the adjudicator to act in a way that does not lead to a perception of partiality”. In commenting on that decision, the editors of the Building Law Reports implicitly expressed sympathy with adjudicators who might find it difficult in the time available to allow both sides the right to be heard on all topics raised but as we know, even disregarding the rules of natural justice, the adjudicator is by statute required to act impartially and this is paramount.

There is in fact a further danger zone within this fifth deadly sin which overlaps with my second deadly sin. This point is best illustrated by the decision of His Honour Humphrey LLoyd QC in Balfour Beatty Construction Limited v London Borough of Council (ante). In that case the adjudicator addressed inadequacies in the claimant’s case for an extension of time by carrying out his own analysis and including this part of the decision, neither party having previously had the chance to comment upon it. By all accounts, Balfour Beatty’s case was not well made out in the adjudication and the adjudicator took it upon himself to dig and delve and shake the matter up so that he could arrive at an appropriate decision “to get the answer in the right ball park”. In doing so the adjudicator has addressed the inadequacies in the claimant’s claim for an extension of time by carrying out its own analysis and including this as part of his decision without allowing the parties to address it.

In his judgment, Judge LLoyd rehearsed the previous generalisations concerning the rough and ready nature of adjudication by saying, for example: “It is now well established that the purpose of adjudication is not to be thwarted by an overly sensitive concern for procedural niceties”. However, Judge LLoyd was particularly concerned that in providing his own analysis, the adjudicator had made good deficiencies in the claimant’s case. He said:

The adjudicator not only took the initiative in ascertaining the facts but also applied his own knowledge and experience to an appreciation of them and thus, in effect, did the claimant’s work for it ⁽¹¹⁾ ... if an adjudicator intends to use a method which was not agreed and has not been put forward as appropriate by either party he ought to inform the parties and to obtain their views as it is his choice of how the dispute might be decided.

In the context of an application for summary judgment, Judge LLoyd concluded that “by making good the deficiencies ...the adjudicator moved into the danger zone of being partial or liable to “apparent bias” as it is now recognised … there is no question of actual bias. However the authorities make it clear that a person in the position of an adjudicator is obliged in certain circumstances – and these are some of them – to tell both parties of what he has in mind and give them the opportunity of either endorsing or deflecting him from that course.

My comment on this point really goes to the fact that parties do not want adjudicators who effectively undermine the prospects of enforcing the decision by acting in a vacuum, setting their own dispute agenda and finding the “correct answer” to their rehash of the dispute.

6. Those adjudicators that yield to bullying rather than face the infamy of seeing their name up in lights

There are one or two adjudicators, and they too shall of course remain nameless, who appear to go through the motions during the currency of the adjudication of being receptive to the arguments, “make the right noises”, “walk the walk” etc but when it comes to the crunch their decisions amount to what appears to be a volte face or as one client put it: “a fine example of the art of turning the odds table belly up”. On the rare occasion that such decisions have been received they have been substantively favourable on the law and issues but in terms of quantum wildly awry. Whilst this might be seen as “hard cheese” and explicable those I refer to show the adjudicator coming to a markedly bizarre view on the quantification of loss and/or expense or measurement to the point it beggars belief and left an uncomfortable feeling the adjudicator had yielded to heavy handed criticism as to jurisdiction. A feeling was left that the result was an escape route for the adjudicator to avoid seeing his decision tipped over by a Judge.

Therefore, adjudicators that do not make reasonably public during the currency of the adjudication what their chief concerns might be on the probity of the quantum evidence do themselves no great favours. If they give any messages out during the process I would suggest they do so guardedly if their reservations are material since to turn turkey when the lights are up is not helpful. There is nothing worse for the parties than to believe up until the decision day that they are “in the lead”, only at the end to receive a pyhrric victory. Yes I am with the referring party on x, y and z but it amounts to a can of beans. Fine if it does not but when it is actually a jar of caviar.

7. Those adjudicators that give the commercial imperative more weight than the substantive evidence and law suggests is warranted

One of the most frustrating things for an advocate is to note that on the substantive legal issues it has set out its case for the client lucidly, persuasively and compellingly (so he thinks!) but to discover the adjudicator has tipped to the commercial imperative eg to keep the cash flowing from the contractor to the subcontractor in such a way as to deprive the party with the winning argument from the result it should quite properly expect. This is in part a flip side of the preceding cardinal sin where the adjudicator gives misleading signals during the currency of the adjudication. Under the present deadly sin the evidential seesaw is tipped in favour of keeping the commercial wheels well oiled on the basis the decision is temporal and might be undone or adjusted further down the line. As most of us know, adjudication is often the end of the line and putting money in the ‘right’ moral or commercial coffer is not what it is about.

As an example is the distinct problem with those adjudicators who regard the absence of a section 111 notice as fatal to defensive arguments such as abatement and a ticket to say the amount claimed is what must be paid. Period.

11. Emphasising the danger of making out a case for one of the parties.

Whilst we know that an adjudication decision will be upheld by the Courts even if the adjudicators gets both the facts and the law wrong ⁽¹²⁾ as emphasised clearly in SL Timber Systems Limited v Carillion Construction Ltd ⁽¹³⁾ where the adjudicator made a pretty bad decision in that he found that failure to serve a notice of payment meant that the application had to be paid and that withholding notice had to be served in respect of every demand for payment whether or not the application was valid, the Court still held that the adjudicator whilst wrong on both points should have his decision upheld. Yes, shock, horror. The frustration caused to the parties by such adjudication decisions is immense. I have repeatedly seen lamentable failures on the part of some adjudicators to educate themselves to keep abreast of the developments and dismissive of obvious errors in the application of the law to the contract dispute. Again this gives adjudication a bad name and has been in part why there has been a move for certain adjudicators to be removed from professional panels.

8. Adjudicators that play silly time games and enter they fray

There is nothing worse than for a party to feel the tribunal is against it from the start be it arbitration, adjudication or litigation.

But bias is not simply about the subjective view that the adjudicator might form himself. It is about the impression he creates in the mind of right thinking folk. Imposing harsh or penal time limits when faced with a request for time which can be safely accommodated within 28 days is unhelpful and could be unfair procedurally. As is barring all phone calls when an adjudication kicks off on Christmas Eve and the Responding Party is trussed up like his Christmas turkey.

We are fortunate since July this year we have had Guidance for Adjudicators in the form of the review of the Construction Umbrella Bodies of the Adjudication Task Group. This document provides basic and simplistic guidance for adjudicators but sadly leaves quite a few more questions unanswered. At first blush the document is in fact rather lightweight given the industry representation of the task force. Seven topics are covered by the Guidance and it is intended to cover the most obstinate and delicate of issues.

The lead note goes to the need for adjudicators to conduct proceedings in accordance with requirements of procedural fairness which means that there must be no apparent bias on the adjudicator’s part and that he or she must give each party a fair hearing. Some helpful pointers are given, for example the adjudicator must ask himself “am I acting fairly?” The adjudicator is warned that he should guard against making up his mind before seeing the evidence. Something which I have to say one or two adjudicators are rather unable to conceal!

There are then those adjudicators who the guidance note recognises become somewhat defensive and shirty when there is a challenge to their jurisdiction. The guidance emphasises the need for the adjudicator to investigate that challenge, even though he cannot reach a conclusion in terms of his jurisdiction. He can nevertheless reach his own conclusion on the merit to proceed or resign accordingly. Unless the parties agree, his decision on jurisdiction is of course not binding but it may influence the bullishness of the winning party.

The Guidance Note goes on to deal with ways in which adjudicators should avoid intimidatory tactics. Let’s face it, when adjudicators are confronted with heavyweight lawyers it is a lonely place to be. Some react badly to such pressure and either become aggressive or distinctly insular. What a good adjudicator should do is remain in control of the proceedings and not lose his temper.

The Guidance also goes on to what an adjudicator can do if he is faced with two or three linear metres of paperwork. He should then ask the parties to paraphrase their case into a concise statement eg a skeleton or request.

It is not showing bias to request a party who is obviously making heavy going of the process, perhaps intentionally, to summarise its position. It is important for the adjudicator to remember that fairness is needed in this process because if the losing side at least sees that it has had a fair crack at the whip, it might just allow the dispute to be finally determined by the process of adjudication and as I have already commented it is not the adjudicator’s actual state of mind that is in question, it is the perception that an outsider would form of his position.

By the same token there is a decipherable trend discernable in the wind that the notion of bias has become such a focus of attention for some adjudicators that they are now in danger of becoming obsessed. This has its roots in the arbitral arena.
I have also seen parties complain at a preliminary meeting because when the adjudicator arrived he decided to plonk his person on the same sofa as the opposition in a room where the adjudicator had little alternative but to sit where he sat, there being only one sofa and one space left in the room!

If anything, as Tony Bingham has said (in his column), the adjudicator should “stay frosty and detached. He should resist being anything other than businesslike. Do not start up the old pal act, even if there is someone you know on the other side, and if you know them, disclose it to the opposite party. Do not go for a drink after the meeting with one of the parties, it is very bad form to be spotted in the restaurant doing so, and if there are social engagements which you know are likely to result in you meeting with parties on the other side play it cool, and if you are going to be particularly cautious, do not go.”

12. Bouygues UK Ltd v Dahl-Jensen (UK (2000) BLR 49

13. (2001) CILL 1760

One thing not to do is what the adjudicator did in the Woods Hardwicke ⁽¹⁴⁾ case where the adjudicator took less than a shine to one of the parties. Before long that adjudicator vis-à-vis that party had accused it of being confrontational. Unfortunately the adjudicator decided to take evidence from one side without telling the other, he took legal advice without reporting it and ultimately helped the wining party to enforce the decision by preparing a witness statement on its behalf at enforcement. In reaching his decision he also made a rather fundamental mistake, which was of itself not enough to undo the decision, but he held that in not serving a withholding notice the other party had lost the chance not to pay the fee claimed by the architect. The adjudicator compounded this error by disregarding the abatement arguments made by the losing party for not paying the full amount claimed by the architect. The adjudicator failed to appreciate that a section 111 notice was not required for abatement but nonetheless the decision would have been binding notwithstanding.

The upshot as far as the Court was concerned when it came to enforcement was that the decision of the adjudicator quite properly destroyed the other party’s confidence as to his impartiality. The moral is that if your hackles rise and as an adjudicator you enter the fray, you do so at your professional peril.

9. Adjudicators that hold back their decisions until their fees are paid and fall into slip rule problems

It is well recognised that none of the standard JCT or ICE conditions make provision for the adjudicator to hold on to his decision until his fees are paid. The HGCR Act is also silent, unlike the Arbitration Act 1996 ⁽¹⁵⁾. So there is nothing in the legislation which suggests that the adjudicator can hang on to his decision until his fee is paid. The law of lien is also harsh as the old arbitration cases show us ⁽¹⁶⁾.

It is however common practice amongst most of the “bigger name” adjudicators to do so by the terms which they invariably proffer upon appointment. Sometimes on the basis the parties are to sign a contract following the nominating body’s nomination so that the parties effectively enter into a new tripartite contract, the terms of which entitle the adjudicator to hold on to his decision, even though it may be “published” within the 28 days or such further period as may be granted by the claimant (up to 14 days) or agreed between the parties. However there are dangers, not least that when proffered they are arguable post contractual and not binding since the appointing for the nomination crystallises the contract. Bear in mind also that to hold on to a decision may breach the contract adjudication procedure as it would do under clause 1A.5.1 of JCT 98 which provides the adjudicator is to notify his decision within the standard adjudication time limits.

As an advocate for clients who come across this scenario there is still a worry about making a fuss about such a ‘lien’ clause due to concerns that this might “upset” the adjudicator. On occasion parties’ advisors do not read all the small print and discover it when the adjudicator draws attention to it when advising his decision is ready to be released subject to security for fees.

The danger for the adjudicator lies if he is robbed of his clause because there was no agreement in the contract sense to his terms. What becomes of his decision withheld? A decision denied is no decision at all!

Given there is authority which shows that an adjudicator is entitled to fees whether the parties agree or disagree with the adjudicator’s decision (unless of course it is reached in bad faith ⁽¹⁷⁾) I advise against imposing such a term on the parties if it is outside the appointing machinery of the contract.

10. What I call the yokyok syndrome – adjudicators who like to lord it about and think they are judges

It is my experience that most of the well known construction adjudicators, who by and large are drawn from the “better” construction arbitrators are adept at managing their time and their caseload to put sufficient resources into the adjudications referred to them. But some seem to pop out of the sausage referral machine so often they must do little else. Others get into time problems and play the card “I am master of procedure” so do as I say to the point of haranguing the referring party for a 14 day extension.

There is an obvious danger for adjudicators to take on more than they can realistically devote to the task and then scrap with the parties to extend time.

I have also noticed a discernible trend amongst a few adjudicators, and it seems to be in part due to the amount of adjudications that they take on, that they do not return the calls of the parties or their advocates, refuse meetings and treat the process as a documents only reference. Whilst certain disputes might lend themselves more properly to this style it is not what adjudication is really about and it serves to cause disenchantment with the process. So please adjudicators, do not allow yourselves to get into this hole without very good cause.

14. Woods Hardwicke Ltd v Chiltern Air Conditioning (2000) BLR 23 at p32

5. Per section 56

16. Roberts v Eberhardt (1857) 140 ER 829

17. Stubbs Rich Architects v WH Tolly & Son Limited and Paul Jensen v Stavely

Conclusion

Adjudication has developed steadily over the last four years. There are two distinct trends. Firstly that as the process is becoming more sophisticated, it is becoming certainly more refined, more contractual and legalistic in the area of jurisdiction and procedural fairness.

To earn the respect of the parties and the construction community, adjudicators need to be well trained both contractually, legally and procedurally.

Whilst an adjudicator may be seen as stepping into the shoes of the contract administrator as the arbiter of standards and a certifier in terms of financial entitlement under the contract he must also have sufficient skills in fairly administering contractual issues that form part of the dispute put up.

It is my honest view too many of them simply do not have the experience or training to enable them to do this job well but the professional institutions, chiefly the RICS, have done a great deal recently to address that issue to my knowledge and in return its kudos is amongst the highest of any.

But the process of vetting must be in a continuum.

There is also a concern that despite the size of some of the panels some good adjudicators do not appear to get a look in. Jobs for the boys might be a better description.

One thing that the process must not be allowed to do is denigrate into old style construction arbitration all but in name which was hallmarked by procrastination - we will have got little further forward and I venture to suggest the arbitral community might then seize some of their lost business by offering truly fast track arbitration!