A sackload of trouble

I was surprised that in his recent critique of Mr Justice Akenhead’s decision in Cantillon vs Urvasco Tony Bingham did not make a single reference to “the sack”. What has the sack got to do with the jurisdiction of adjudicators you may ask? Tony knows the answer to that question and he would, no doubt, tell you that it was he who invented the concept in this context. I know better, of course, because it was me.

Let me explain. It all goes back to a rather strange decision by Judge Seymour in which he held that, for the purposes of adjudication, the word “dispute” did not mean simply a contested claim – which had until then been its meaning in all contexts – but, instead, the full package of facts, matters and arguments exchanged between the parties prior to the service of the notice of adjudication.

This policy-based interpretation of the legislation spawned a whole lexicon of new terminology, such as the need for full “ventilation” of the arguments prior to “crystallisation” of the dispute. Most evocative was the concept of the sack into which the parties had to deposit the arguments and other material they intended to rely on in the adjudication. This sack would then be tied up and, upon referral, deposited on the adjudicator’s doorstep to be untied and the contents unravelled.

The reason why this was such a good analogy was that, according to Judge Seymour’s logic, the adjudicator could only rely on the material found in the sack to reach his decision. There might be some scope for the parties to introduce pure evidence during the proceedings, but if it was material that altered the complexion of the original claim, that was clearly out of bounds. The ultimate consequence was that if the adjudicator relied on any such material in reaching a decision, they would open the door for the losing party to challenge its enforcement.

Subsequently, we have seen a retreat from this strict and very narrow interpretation of what the word “dispute” means. Even Judge Seymour recognised in subsequent decisions that the rule as stated by him was a tad harsh, if not contrary to principle. Judge Akenhead’s decision in Cantillon vs Urvasco was a further step in this process; indeed, the retreat from that decision is pretty complete.

We have seen a retreat from a strict interpretation of what the word ‘dispute’ means. Judge Seymour recognised in subsequent decisions that the rule as stated by him was harsh, if not contrary to principle.

That is not to say that the position is now straightforward, because it is not. For instance, Judge Akenhead stated that “one cannot say that the dispute’s claim or assertion is necessarily defined or limited by the evidence or arguments submitted by either party” prior to the adjudication. He then confirmed that this meant that a defendant could “raise any defence to the claim” referred. He added that “similarly, the claiming party is not limited to the arguments, contentions and evidence put forward by it before the dispute crystallised”.

So, if, for instance, the claim is for unpaid certified money and the defendant seeks to set off a claim for liquidated damages for which it has given a withholding notice, that would be a valid defence that it could pursue in the adjudication. But what if the claimant then contends that it is entitled to an extension of time that reduces the damages? Just as the defendant can rely on any defence to oppose the claim, can it rely on the natural defence to the claim for liquidated damages? Judge Akenhead makes the tantalising observation that the defendant has to accept “the consequences” of the defence it seeks to run, but how far does that proposition go?

Similarly, it is clear that a claimant can, during the proceedings, introduce new “arguments, contentions and evidence”, but to what extent, if at all, can it change the fundamentals of the claim originally advanced? For instance, taking the facts of Nuttall vs Carter itself, if a claimant, during the proceedings, sought to change in relatively minor ways the basis for its claim for extension of time while leaving the actual dates and the period claimed identical, would they be crossing the line?

Judge Akenhead’s decision is enormously helpful but, like Santa Claus, my recommendation is not to throw that sack away just yet.