Gosh, is that really the time?

In the recent case of Amec Group vs Thames Water Utilities, Thames Water said the adjudicator had failed to take on board some information sent to him supporting its case. Set the result aside, it demanded. Shan’t, said the High Court.

Now then, the guidance in this judgment is top-drawer stuff. It helps enormously because even after 12 years of 28-day adjudication we are still trying to fathom what it is. In 1998 parliament gave our industry what it wanted. By that, I mean construction folk wanted something better, faster and cheaper than the process lawyers had developed over the past 500 years or so. And listen up: the lawyers now admit … it works. Except for this: they have been trying over these 12 years to convert our 28-day adjudication into 28-day litigation; litigation on roller-skates. But 28-day adjudication is entirely different.

Crucial difference number one is the 28 days. Crucial difference number two is that the might of the High Court has to be deployed to make the loser obey. If the adjudicator has adjudicated contrary to the conventions of the lawyers, then there will be no enforcement. So, in these 12 years adjudicators have been coaxed, even bullied, into running the process as though they were lawyers – nay judges. And naturally, they fret that the High Court might say they have not come up to snuff.

Here Amec said £1m was unpaid. It issued a notice of adjudication on 30 October. The referral was then served on 13 November. Counting 28 days from then gave a decision date of 11 December. Meanwhile, the Thames Water response was served. Much of it contained material Amec had not been provided with until now. Looming in 14 days was that date for decision. How on earth could a decision be made without giving Amec time to reply to all the new stuff?

Once upon a time it was thought that Thames Water ought to have canvassed its arguments in the months preceding the adjudication. No, no, say several recent cases – it’s open to the defendant to raise any defence, even those not put forward before the adjudication. That’s what happens in litigation. So, if a new story comes in for the defence, the opponent has to deal with it. Amec did, and agreed to give an extension of time for the award to 24 December. Mind you, it still leaves this poor adjudicator fellow with a handful of days to adjudicate referral + response + reply, which is a task of Herculean proportions.

It didn’t stop there. Thames Water put in another load of materials – two days before the deadline. Frankly, the adjudicator ought to have had a tantrum at this stage. He should have leaned on the lawyers for a sensible timetable. Instead he burned the midnight oil to get out his decision. Barmy!

Here is what the High Court said: The adjudicator was not obliged to consider the further response in detail. He was not to ignore it altogether, so long as he glanced at the material it contained “to see if it contained anything of real significance”.

“In my judgment,” said the judge, “an adjudicator is not obliged to consider in detail a second round submission served late in the process. His overriding obligation is to complete his decision within the time limit. If that means that he cannot read in detail a document provided just over two days before the decision, then that is simply one of the consequences of the adjudication process.

“Unless the contract or adjudication rules permit it, parties do not have the entitlement to respond to every submission.”

And then comes another important opinion – he said there was no room to complain if “new” materials that could have been advanced before the adjudication is ignored. Put shortly, you won’t have a leg to stand on if you run an argument that could have run during the build-up. Keep powder dry and your case will turn into a damp squib.

But many an adjudication is concluded by consent where both parties are content to knock the ball back and forth for longer than 28 days. And if that’s okay by them, it’s okay by me.