The nerve of it

In the Users' Guide to Adjudication, published by the Construction Umbrella Bodies Adjudication Task Group in April this year, we are reminded that "adjudication is designed to be a simple process to enable disputes to be resolved inexpensively and quickly".

But research by Glasgow Caledonian University (Research Analysis of the Progress of Adjudication: Report No. 5, by P Kennedy and J Milligan) indicates that there appears to be a move towards more complex adjudications, which, together with an apparent levelling off of the overall numbers of adjudications, suggests a reduction in "simple" disputes.

Those of us old enough to remember life before Woolf will recall the old summary judgment procedure contained in what was then Order 14 of the Rules of the Supreme Court (now Civil Procedure Rule 24). This procedure was intended to be used as a way to deal with straightforward cases where there was no arguable defence to the claim being brought by the plaintiff. The idea was to dispense with such matters swiftly and relatively cost-effectively and to concentrate on the more contentious and less straightforward issues in court. What happened in practice was that summary judgment proceedings became progressively larger, more complex and more time-consuming until in effect they resembled mini-trials. Often, the result of the summary judgment proceeding effectively dictated the result of the overall dispute.

Does this begin to sound familiar? Without wishing to stretch the parallel too far, it seems to me that as adjudications become more complex, time-consuming and expensive, they are increasingly being used in the way summary judgment proceedings were used in the past. Although adjudication was originally conceived as a "pay now, argue later" mechanism, it is apparent that most adjudication decisions are now accepted by the parties as the final result.

Does this matter? In many ways, perhaps not – adjudication will develop how it will irrespective of any ranting on my part or any number of reports or research projects. What does concern me, however, is that as adjudications become larger and more complex, they encourage the "try-on". This was something that used to happen under the summary judgment procedure and is increasingly happening with adjudication. In essence, the party commencing the adjudication (often close to, if not at, the final application for payment) will submit a claim that has been massively inflated. The adjudicator is then under pressure, even with agreed extensions of time, to consider an enormous claim that will inevitably produce an equally voluminous response from the defendant, which will be reluctant to ignore even the most specious claims just in case the absence of a substantial response appears to the adjudicator to indicate some form of admission of liability. Thus the costs spiral out of control.

The intention behind this approach is obvious: overstate your claim and even if the adjudicator cuts your claim in half, you may end up more or less where you want to be rather than having your claim subject to any real scrutiny. It is an old trick, of course, and one that adjudication, in theory, could have addressed by dealing with issues separately and chopping up large claims into more manageable ones, each of which could then be considered thoroughly. Essentially the "try-on" relies on an adjudicator's willingness to seek to find some sort of compromise by awarding the referring party at least something even if there is little proof that it is owed anything at all.

Is there a way to deal with the "try-on"? My suggestion is this: an adjudicator should have the nerve, if he or she feels that a case has been overstated, to cut it right back. Further, if it is felt that there is simply no merit to a claim, the adjudicator shouldn't award anything at all. Adjudicators should have the courage of their convictions and ensure that the adjudication procedure retains its reputation as a fair method of dispute resolution.