| Date | 24 July 2002 |
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| Judgment | Guidance for adjudicators |
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| The Issue | Review of the Construction Umbrella Bodies' Adjudication Task Group document entitled "Guidance for Adjudicators". |
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| Implication |
Basic and simplistic guidance for adjudicators which unfortunately leaves many more questions unanswered. |
printThe Construction Umbrella Bodies' Adjudication Task Group has just published its "Guidance for Adjudicators". All of the big lobby groups in the construction industry are behind this task group; The British Property Federation, The Construction Confederation, The Construction Industry Council, The National Specialist Contractors Council, the Specialist Engineering Contractors Group and the Department of Trade and Industry. So surprising to see such weighty parents produce such a lightweight offspring. Unfortunately adjudicators will have to look elsewhere for guidance on some of the more demanding problems which they have to address on almost every adjudication. Guidance for Adjudicators covers seven topics. It is not clear why only these seven topics have been chosen, since adjudicators face many other delicate and tricky problems each time they take up an appointment. Nevertheless time is tight and space is short, so here is a potted version of the seven topics of guidance. (1) An adjudicator must conduct the proceedings in accordance with the requirements of procedural fairness. This means there must be no apparent bias on his part and that he must give each party a fair hearing. The adjudicator is given some more helpful pointers. For example, he should ask himself "am I acting fairly?". The adjudicator is warned that he should guard against making up his mind before seeing the evidence. (2) When there is a challenge to the jurisdiction of the adjudicator, he should investigate that challenge, reach his conclusion on its merits and proceed or resign accordingly. Unless the parties agree, his decision on jurisdiction is not binding. (3) When faced with intimidatory tactics from one or both of the parties, the adjudicator should remain in control of the proceedings and not lose his temper. (4) When faced with unmanageable and disproportionate quantities of documentation, the adjudicator should ask for less documentation, ask the parties to paraphrase their case in a concise statement, or request an extension of time. (5) According to the statutory "Scheme for Construction Contracts" the adjudicator is obliged to give reasons for his decision if requested by one of the parties. He should therefore force the parties hands on this point early in the adjudication to avoid a late request for reasons. As far as it goes, that piece of advice may be sound, but unfortunately it is also misleading. It ignores that most of the standard form construction contracts displace the Scheme. Clause 41(A).5.4 of JCT 1998 for example clearly states the adjudicator shall not be obliged to give reasons for his decision. (6) If the adjudicator has made an error in his decision, he should correct it as soon as possible and notify the parties. This does not involve changing the substantive decision because of second thoughts, but simply correcting errors to give effect to the adjudicator's original intention. (7) In adjudications under the Scheme each party is responsible for its own costs. The adjudicator does not have the power to order one party to the pay the other parties' costs. Again the difficulty with this guidance is that it does not warn the adjudicator to carefully study the terms of the particular contract he is dealing with, where different rules for parties' costs may apply. The Task Groups' Guidance for Adjudicators, is generally uncontroversial. Unfortunately, neither is it educational for most practising adjudicators. Hopefully the Task Force will in due course find time to address the more testing issues which make an adjudicator's job difficult. Suggestions would include: When should an adjudicator admit a counterclaim? Does it make any difference if the counterclaim is applied as a set-off? Does it make any difference if the counterclaim is in reality an abatement? What categories of evidence should an adjudicator admit? What if the evidence changes the dispute? How should the adjudicator treat payment and withholding notices? What weight should be applied to the "notice of intention" if the referral notice changes the nature of the dispute? How should an adjudicator deal with contracts made orally but evidenced in writing, or written contracts varied orally? Can an adjudicator also act as a mediator? How should an adjudicator act if one party is insolvent? Can settlement agreements ever be the subject of an adjudication? How does an adjudicator act when parts of the disputed works are "construction operations" whereas other parts are not? Is a "matter of dissatisfaction" under a construction contract capable of being adjudicated? What parts of an adjudicator's decision on an interim valuation binds a subsequent adjudicator on a subsequent valuation? What does an adjudicator do with final and conclusive provisions contained in some standard forms? Similarly, can he adjudicate where a party relies upon contractual "conclusive evidence" provisions? What does an adjudicator do when the referral is served late? Should adjudicators issue their decisions as peremptory orders, and if so, why? Can an adjudicator order payment into a joint account until a separate cross-claim is resolved? Can an adjudicator refuse to release his decision until his fees have been paid? May an adjudicator request an advance payment before proceeding with the adjudication?
CJ-0228
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