Tackle it with Eezyjudge®

Her Honour Judge Frances Kirkham has asked some useful questions in her paper The Future of adjudication 1 given to the Society of Construction Law earlier this year. Can I try some answers?

The judge’s first question is: how well is the latest version of adjudication dealing with heavyweight final account disputes? She didn’t put it that way of course. But the short point is that because adjudication has been successful, more and more people have brought bigger disputes to adjudicators. More than that, the quarrelling parties are using the adjudicator’s decision as something to live with, or to use to negotiate a deal. They don’t want to spend megabucks in litigation or arbitration.

New adjudication in 1998 was expected to be the forum for a quarrel about whether the flue liners were a variation or not. In the even newer model, tricky points of law, interpretation of contracts, promissory estoppel were pinged at the odd QS adjudicator. In the even-newer-than-that adjudication, van-load of lever arch files were being delivered. And in the files are 10, 20, 40 issues about the final account.

Now then, the judge is at a di sadvantage. She isn’t a new, new, new adjudicator. Nor has she been an adjudicator on one of these final account adjudications ever. But she is a part of the adjudication model. It has four corners and one player in each corner: Party A, Party B, the adjudicator and the judge; the judge is responsible for subsequently enforcing (or not) the adjudicator’s decision against A or B. The judge asks, how on earth can you shoehorn a complex and paper-heavy case into the adjudication timetable? And even if the timetable is extended by agreement, is that an acceptable way to continue? The adjudicator may have had to make a decision based on incomplete or perhaps untested evidence. And, if I hadn’t ever done final account adjudications, I would be just as doubtful. Nay, I would have scoffed at the notion that final accounts should and can come to adjudication. Of course they can. Ah but what do you get?

Tackle it with Eezyjudge®

The white van turned up. It contained 27 lever arch files, 12,000 pieces of paper. That was only the case of Party A. Next week came the white van again. Party B sent 5000 pieces of paper. Then A said it wanted to reply, and did. Then B replied to the reply. No I didn’t count the pieces of paper. I just simply agreed I had 21-days to do my deciding from when they stopped knocking the ball across the net. Now it was my turn. A and B were asked to produce a list of issues and sub-issues as one-liners. Also to say whether A or B had the burden of proof. Also to say where in all the pieces of paper each issue and sub-issue was argued. Guess how many issues and sub-issues we had? 276. Each had been quarrelled over.

The white van had 27 lever arch files containing 12,000 pieces of paper. That was Party A. Next week, Party B sent 5000 pieces of paper

Now what? I reminded myself of my basic job. I must ascertain the facts and the law and give effect to A and B’s contract on each issue. How do I ascertain? From what A and B say. If the burden of proof for issue one is on A and if my job is to decide there and then if they have proved a fact, A must tip the scales there and then. And if he doesn’t, he fails. I shout “next” and up pops issue two. Easy? Cheap? Well sort of. Any other way of doing the job? Yes there is, I will come to that. Look, doing final account adjudications are easy provided you keep to a simple model: just decide A and B’s arguments.

Another model? Sure. Instead of deciding their dispute on their arguments, get the parties to appoint you as an independent expert. That’s where you do all the digging, delving, rummaging and roaming. In other words, you find the contractual rights, the breaches, the losses, the causes, the variations, the facts, the evidence, the law. Easy? Cheap? Well no. I have done that job, too. My fees were much more and my time was months not days. Different? Yes of course, I was making a case of my own for the parties. But that’s all right because the parties authorised me to do that. As for dealing with 276 issues in a final account by deciding each issue on the burden of proof and simply reading A and B’s arguments, no problem.

Must go; have another one – 350 issues this time … as adjudicator, not expert.

Tony Bingham is a barrister and arbitrator