Court judgments from adjudication cases are numerous, though not always significant in directing the practice of the process of adjudication or the practices of adjudicators.
Mark Entwistle
Adjudicators may generally be said to pursue twin objectives; one inward-looking and subjective and the other outward-looking and objective; though both are related, and are essential to achieving an acceptable result of the adjudication process.
It is not often that the subject of penalty clauses rears its head in higher courts; the law has appeared pretty settled on the subject for years, if not decades. It is interesting then, that not one but two recent cases have been the subject of appeals (heard together) in the Supreme Court on this very subject: [2015] UKSC 67.
Adjudication under the Construction Acts(s) in the UK is approaching its 20th anniversary and it can be anticipated, in celebration of that august event, that many reflections upon its efficacy will soon be put into print. So here, somewhat in advance of the auspicious date, are musings that come from a somewhat different perspective. That of the adjudicator fraternity. They are personal views, of course, but it is anticipated that many (or most, or indeed all) adjudicators will subscribe to them.
The resolution of disputes in both the domestic and international arenas has, over the years, relied heavily upon non-court processes, increasingly in recent times. The costs incurred by the parties involved in dispute resolution can be considerable, with relationships between them also being put at risk. The focus has, however, increasingly switched in more recent years from binding resolution by tribunal decision imposed upon parties, to a more co-operative and non-confrontational approach.
The process of obtaining the services of an adjudicator has, from the very start of statutory adjudication in the UK, been a rather fraught affair. Throughout the period from 1996 to the present day, the quality of adjudicator performance has, understandably, been a matter of concern to all involved; parties, their representatives, adjudicator nominating body (ANB) administrators and to adjudicators themselves.
Over recent years, much has been written, and even more said, about the quality of performance and abilities of adjudicators.
INTRODUCTION
In the middle of November 2009, the Local Democracy, Economic Development and Construction Act 2009 (“the Act”) was passed into law. Though it is not yet clear when it will come into operation, it includes several provisions that will impact upon both adjudication and payment arrangements in the UK construction industry.
It is trite to state that the identification of the issues is a crucial activity in any adjudication. The reaching of an appropriate and enforceable decision (the goal of every adjudicator) fundamentally depends upon understanding clearly what has been raised not only in the Referral but also the other submissions that have been made. This introduces questions not only related to the adjudicator’s jurisdiction derived from the Notice of Adjudication ad the Referral, but also related to the matters that the Respondent may wish to introduce by way of defence and/or counterclaim.
INTRODUCTION
1.0 The practice of adjudication can be succinctly summarised as involving two key elements – case management and the weighing of evidence. That statement is not to diminish the crucial importance of the application of the law, but experience indicates that complex legal issues are not a significant feature of the majority of disputes that are referred to adjudication.