Curiouser and curiouser: how the role of the adjudicator is becoming more complex

In a recent case, Northern Ireland Housing Executive vs Dixons Contractors Ltd, the adjudicator complied precisely when answering the question put to him and gave exactly the correct answer – but that question turned out to be bigger than it seemed. Are you flummoxed by that? I will explain shortly. But first let me say: we need adjudicator training to cope with this kind of thing. And so a round of applause for the RICS Dispute Resolution Service, which has a new “competencies programme” for its panel of adjudicators; a hands-on programme of train and test. And I would say that what went wrong in that Northern Ireland Housing Executive adjudication is an ideal topic for the new RICS training curriculum, to prevent such mistakes.

Interpreting the intentions of the parties via their contract is a very subtle and detailed task […] such questions are what adjudication is now all about

The RICS system hitherto was to subject each of its adjudicator panellists to a five-year MOT. The adjudicator would submit three decisions and attend a face-to-face interview then could skedaddle for five years. That’s all very well, but adjudication is still a new kid on the block. We may have been at it for 21 years, but it is still being fathomed. The new RICS training system is on-going: it will coax the adjudicator to keep up to date with the frequent changes in adjudication.

The programme has 10 “competencies”, on all of which an adjudicator must eventually complete by means of umpteen one-day training courses followed by multiple choice tests. The competencies are:

• Identifying and dealing with conflicts of interest
• Dealing with jurisdictional challenges
• Efficient management of parties and their representatives
• Maintaining and controlling timetables
• Principles and practice of contract interpretation
• Professional negligence
• Finding fact and managing/weighing evidence
• Providing clear and adequate reasons
• Drafting enforceable decisions
• Dealing with issues around fees and costs. 

On top of all that, the RICS panel members meet twice a year for two days of lectures, discussions, gossip and a few drinks.

Now then, what went adrift in the Northern Ireland Housing Executive case? The very experienced adjudicator was required by the notice of adjudication – and by the referral and the response – to decide “whether there was an ambiguity”. That was the question requiring his declaration. A awful lot of new PVC windows had been required and the specification had called for cellular extruded PVC window finishing trims, but the contract drawings did not provide that finishing trims were required. The housing association said there was no inconsistency at all, no ambiguity. Dixons Contractors said there was a difference and therefore it was entitled to an instruction for additional work. For good measure it added that the instruction carried money and time. The adjudicator stated that his jurisdiction was plainly limited to answering the question “whether or not there is an inconsistency/ambiguity between the said documents”, and he answered that there was. That pro-tem binding decision was then challenged before Mr Justice Horner in the High Court, Belfast.

The judge decided, and had no doubt, that there was a difference between the specification and the drawings. The specification provided for trims “where necessary” and the drawings did not show any trims at all. But the adjudicator, and now the judge, was not determining whether there was a difference between the specification and the drawings, “because”, said the judge “there clearly is one”, adding “rather it is this court’s task to determine if there is an ambiguity and/or inconsistency as a result of the difference”. 

That was the same question to be answered by the adjudicator, and this is where the training such as the RICS now provides plays a crucial role. The training room will plumb the depths of “principles and practice of contract interpretation”. The answer by the adjudicator focused on whether there was a difference, and that question led him up the garden path. The vital task is not only to look at the words, it is also to look at the context and then use what the courts call “permissible aids to identifying the purpose of the commercial document of which the words form part”. Then there is a gloss added by the rules by the highest courts: remain reluctant to hold that parts of a contract are inconsistent with each other. 

Make no mistake here; interpreting the intentions of the parties via their contract is a very subtle and detailed task. The judge showed how this must be done: the documents must be viewed in the context of the contract as a whole. The analysis cannot stop at viewing documents in isolation. In the end the judge decided in the opposite way to the adjudicator. True, there was a “difference” between specification and drawings, but, said the judge, there was no ambiguity once it became clear that, irrespective of the documents, it was work that was indisputably part of the contract scope. This would all make very good training, since such questions are what adjudication is now all about. Twenty-odd years ago we thought it was simply a QS deciding arguments on the hoof – what happened? 

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