Keep it clean

For this exercise please take three setting-out pegs, a line and a hammer. I will tell you why in more detail a minute, but it is all to do with the Adjudication Society. This group was set up two-and-a-half years ago by some volunteers. Nothing formal exists. It just meets from time to time to talk about good practice. You're welcome to come and join in.

The most recent conference, attended by more than 100 people, was a forum for discussion papers to be delivered and debated. It was great fun. True, the room was heaving with disputomaniacs, but some real people came too. And the best contributions came from them. Real people are the builders, including architects and engineers, who actually use adjudication. And do you know what they want from it? No tricks, no fancy footwork, just fairness in the adjudication, that's all. Accurate decisions, that's all.

The keynote speaker was Mr Justice Forbes. He leads the team of judges in the High Court that deals with construction industry disputes. That team has had a huge input in adjudication. It has explained and shaped the law in this field.

You might be forgiven for pondering why the courts became involved in what was originally intended to be an industry decision-making process by an impartial industry person. The reason for the court's involvement is to enforce (or not, as the case may be) an adjudicator's decision if it is not obeyed. The snag with inviting a judge to do this is that they are likely to read it. They are obliged to enforce the decision on the facts and the law, but a judge will wriggle under his wig if he detects that the procedure has been stained with unfairness. If the route to a decision is potholed with biased behaviour, the judge will be unlikely to enforce. Helpfully, Mr Justice Forbes gave a personal view of procedural fairness.

Now, have you got your setting-out pegs handy? Hammer them into a triangle. String the line between the three. Stand in the middle. Peg one reminds you that adjudication is in the contract by statute and is therefore a contractual device. Peg two is the time constraints for adjudication: 28 days. Peg three is the provisionally binding nature of the decision. The person in the triangle is the adjudicator. If he is unfair or allows a party to be unfair, the judge might set aside the whole show. The snag is, knowing what is unfair.

Unfairness might be caused by the adjudicator digging for information or coming up with ideas and there being no time to show the idea is daft

The judge will use three pegs to come to a decision about this. First, what did the parties agree in the contract about adjudication? That is a good place to start for fairness, since it will be taken to determine the adjudication machinery. Then they will ask what turn of events arose in the adjudication. Was there, for instance, an evidential ambush? Then he'll test the turn of events against the provisional nature of the whole process. The unfairness might even be caused by the adjudicator digging for information or coming up with bright ideas and there being no time to show that the idea is daft or that the line of investigation irrelevant. On the other hand, you might argue that it is not unfair, given the provisional nature of the binding decision. But adjudication is being used time and again as a final resolution system, akin to arbitration at 1000 mph. So the fairness factor is fundamentally different.

It was fairness that dominated the Adjudication Society day. Not many people thought that the 28-day period was the time for putting up new arguments. Instead, the idea was for the claim and rejection, together with all the arguments, to be done before the adjudicator was called in. The bag of arguments was sealed at the neck and handed over for a 28-day prodding.

So was it fair to let new arguments in during the 28 days? Well, that depends on the three pegs, doesn't it? The idea of introducing an expert report unseen before the adjudication might be a foul. Not many thought a pre-action protocol was attractive, if only because it introduced "rigmarole" – yet another piece of machinery. But few disliked the notion of collecting all the arguments and then requiring the referring party to deliver both sides' views on day one of the adjudication.