Adjudication: Pick on someone your own size

It’s high time that some of you representatives in adjudication started putting your feet where your mouth is. Go and read the first three lines of this Twintec Ltd vs Volkerfitzpatrick Ltd case. And now stop mouthing off at adjudicators telling them to clear off, to resign, and to go away; mouth off instead at a High Court judge.

Flooring subcontractor, Twintec, received a notice of adjudication from main contractor Volkerfitzpatrick, and didn’t like it. That was on Tuesday 2 December 2013. By Friday, Twintec had turned up in court and asked, very politely, for an injunction to stop the affair. And lo, the High Court judge said yes. There was a prima facie case to order a stop or pause, at least. So, that stymied the service of a referral, barred the adjudicator and barred the claimant from doing owt. Then on 18 December a more detailed hearing took place. The same judge ordered the red light to stay on. He then wrote a full judgment and – bingo – the Twintec enterprise got its way. They stopped the adjudication.

An application for an injunction does stir up the bodily functions. The whole idea of an injunction is to put a super-quick spoke in someone’s wheel

Now let me tell you why I like all that. I like the greased-lightning action of the judge. An application for an injunction does stir up the bodily functions. The whole idea of an injunction is to put a super-quick spoke in someone’s wheel.  And I like it because inviting, or sometimes bullying, an adjudicator with a plethora of technical niceties about threshold jurisdiction and telling him to sod off, doesn’t work too well.  Better by far to not trouble the adjudicator, go direct to the judge. And do it as soon as that notice of adjudication turns up. 

Look, let me be frank, it has become a music-hall joke asking an adjudicator to shoot himself in the pocket. He is the last person to seek an impartial, independent decision about his own future. He got the appointment and hell’s bells he is staying. In law the adjudicator is wholly biased.  That’s why he can’t or shouldn’t make a binding decision about the right or otherwise to stay on the pitch. Worse, oh far worse, is that these so-called threshold jurisdiction points are lawyers’ shenanigans; we love them. It’s not the meat and veg’ of an architect adjudicator. His life is all about the difference between architraves and elbows. He isn’t a lawyer. 

Even worse is the idiotic tendency of some representatives to get very shirty with the adjudicator if he pauses when being told he should resign. Bullying is now widespread. We even have some very stupid representatives threatening the adjudicator that if he stays in place, he will not get paid by the bully. Crude. 

Wrong in law too. If a party stays on the pitch even under a flag of protest you are liable for the adjudicator’s fees. You can’t play and not pay.  And there is more. Some adjudicators become so fed up with stupid bullies, that they take umbrage. Don’t for heaven’s sake think or suggest that a fed-up highly pressured adjudicator architect can somehow rise above the bullying.  Prick the adjudicator, he bleeds, tickle him and he laughs … So do you now see why it is ever so wise to carry your clever threshold arguments into court and wheedle an injunction out of the old boy sitting on the bench? Oh, by the way, don’t try bullying that chap!

That Twintec case is also useful for knowing what threshold jurisdiction challenges won’t work. I go this far, Twintec squeezed home on a narrow point that could so easily have gone against them, on another day. Their shopping-trolley of objections was mostly thrown out. They argued that the adjudication was only being brought into play to disrupt Twintec’s ability to abide by the timetable in a parallel court proceeding (seemingly there is a concurrent piece of litigation for some £170m). 

The judge said “tough, get on with it”.  So they tried another blast: Volkerfitzpatrick was only trying to obtain a result refused in the main contract. The judge said “tough, get on with it”.  So, another blast; Volkerfitzpatrick was only trying to fragment the existing proceedings. The judge said, “tough, get on with it”.  So another blast: Volkerfitzpatrick was putting an oppressive and unconscionable burden on Twintec. “Tough,” said the judge. So Twintec hurled in: “The adjudication has no real prospect of success.” You could almost hear the judge say “do me a favour”.

As to the last point, do you realise that some adjudicators become so fed up with overly robust, half-baked representatives that there is a real chance that a poor case has a real prospect of success. There are just a few thick-skinned adjudicators that are tickled pink by bullies trying it on, but others will instead prick you until you bleed.

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