The day I got a kick in the pants: The differences between adjudication and litigation

This recent case of Benfield Construction and Trudson pulled me up sharp. It caused me to give myself a good talking to. Some of us, myself included, are losing sight of what the “bloomin’ marvellous idea” is for. Some of us are turning it into litigation on amphetamine. In a recent adjudication of mine, the solicitor for the respondent described it as litigation on Viagra.

Stop. Consider this. Construction Act adjudication is not an invention of the lawyers or the Law Commission or the Lord Chancellor. It is an invention of the construction industry, and it was needed because by the mid-nineties lawyers were making an awful fist of managing quarrels.

The simple fact is that construction work is disputatious. We don’t want quarrels litigated; we want them nipped in the bud so we can get on with the job. That’s why there’s a 28-day time limit. In that time, the rowing and whingeing is stamped on. Yes, yes we call the quarrel-decider an “adjudicator”, but don’t go all legalistic on me. I am only here to listen to the row on the table and bingo … decide it.

Adjudication was not designed to go within 10 miles of litigation. Litigation is all about deciding arguments never thought of at all – until the writ was issued.

In the beginning, the lawyers rolled about laughing. 28 days! Ha, ha! Toss a coin, why don’t you? Someone wrote a 500-page essay called a Plea for Sanity. They wanted adjudication binned. But parliament listened to the industry. It dawned on parliament that we were not calling for 28-day litigation. We only wanted a tool for deciding the quarrel getting in the way. “Oh,” said Westminster, “so this is not a dispute resolution process.” “No, no,” we replied. So the word “resolution” was dropped. It isn’t in the act. In 28 days there is only time to decide the extant quarrels.

After it was brought in the lawyers nudged each other and muttered, “This adjudication malarkey is working.” They were right. It was working because it wasn’t litigation. And the lawyers are not daft. And the lawyers came and snorted at the speed. And winked and smiled … and nicked it!

Ten years of adjudicaton shows us it’s daft to save up your rows; its neat to deal now with the quarrel you’re having now.

Benfield vs Trudson is my kick in the pants. The judge looked at what the adjudicator did, then explained how none of the procedure fitted with principles of litigation going back to 1843. And because it didn’t fit (and I absolutely agree with him), he said “it was not the purpose for which adjudication was designed”. And he is so right. Adjudication was not designed to go within 10 miles of litigation. Litigation is all about deciding arguments never thought of at all – until the writ was issued. Then all the fine legal minds think of lots of questions and answers that nobody would ever have thought of if they didn’t have to make a living by doing so.

In the Benfield case the employer got fed up arguing about whether practical completion had arrived. That was question one for the adjudicator; he said it hadn’t. Then a second adjudication decided the quarrel about what liquidated damages were due. Then a third one asked the adjudicator to decide if partial possession had been achieved. That’s a different and separate question to practical completion and the adjudicator decided that quarrel as well. Ah, well now, here is where litigation parts company with commercial adjudication. The judge refused to enforce adjudication part three. It was serial adjudication. For 150 years the courts have found “serial litigation” a no-no. It is an “abuse of process” not to bring all of the issues in one go. But in adjudication it works ever so well to bring one question or a few questions at a time. Ten years of adjudicating shows us that it’s daft to save up your rows; its neat to deal now with the quarrel you’re having now. But lawyers are out of their comfort zone. So the Benfield judgment shows us how adjudication is not litigation, and its one helluva job shifting these old fashioned, non-commercial ideas out of my head. Doing adjudications one after the other really does work. Doing adjudications when new arguments are tossed into the 28-day pot, which obviously take the other side by surprise, does not work. But litigation lets new arguments in – even during the trial.

At the heart of this 28-day process is the simple idea of bringing single-issue disputes (the time limit is a clue). The issue may be only a part of the overall dispute, so bring the next set of issues back next time; it’s called serial adjudication. Adjudication is not litigation. It’s better.