Although not the subject of a formal complaint, I came to hear about a “grumble” recently concerning how “cosy” the adjudicator and the Responding Party’s representative had appeared during the course of an adjudicator.
J R Hartley
Whilst some nominating bodies distance themselves from investigating the charge out rates levied by adjudicators, complaints do arise as to the overall amount charged and/or time spent by an adjudicator in the conduct of a matter.
Whether a complaint surrounding an adjudicator’s resignation will be upheld will very much depend on the facts.
One complaint that arises from time to time is an allegation that an adjudicator has a close relationship with one of the party representatives.
Most of you will be aware of the phrase concerning a tribunal “going off on a frolic of its own”, which, in the context of adjudication, is a reference to an adjudicator using his or her own evidence to determine a dispute.
A complaint that sometimes arises is that the adjudicator has failed to consider a party’s evidence.
A complaint came across my desk recently regarding the amount of time an adjudicator had spent on an adjudication that had settled. The criticism was that the adjudicator had spent more time, and generated a higher fee, than was considered necessary.
We all know that adjudicators are allowed to get it wrong, providing that the question they answer incorrectly is the right one. However, this is of little comfort to a party who is on the receiving end of a decision that is wrong, either factually or legally. Whilst that party may well have the comfort (I use the term loosely) of being able to undo the wrong decision by way of further proceedings, this option may not always be available, especially if the beneficiary of the wrong decision is consigned to the insolvency heap.
It came to my knowledge that a complaint was made recently that an adjudicator had “changed his mind” after a decision had been made. The complainant alleged that, following representations from the other party, the adjudicator altered his decision and had changed his mind. At first blush, if it were correct that the adjudicator had changed his mind after reaching his decision, then I think there would be general consensus that the adjudicator had no power to do so and that the complaint was justified.