Adjudication: Silence is not an option

Tony Bingham’s column on 7 March (“Pick on someone your own size”, here) makes disappointing reading for clients, adjudicators and “representatives in adjudication”. The article was provocative but also raises an implicit and irresistible conclusion.

It is wrong to say that “in law the adjudicator is wholly biased”. It is also wrong to suggest that adjudicators don’t need to understand the law; that adjudicators should not have to deal with so-called threshold jurisdiction points; or that points or submissions about threshold jurisdiction are inherently and automatically linked to so-called “bullying” of adjudicators. Jurisdiction and especially threshold jurisdiction are topics that are, now, widely understood and our lay clients would be disappointed (even horrified) if they knew that the people resolving their statutory disputes were not trained or equipped to deal with them.

Of course, some (rare) challenges to jurisdiction will be more complex than others, but it is wrong to advocate that challenges ought only to be made in court and to a judge rather than to the adjudicator during the adjudication process.

Tony has also not considered the professional obligations on those who advise and represent clients. Solicitors and counsel that fail to address jurisdictional challenges, procedural errors and breaches of natural justice, can find themselves at the centre of professional negligence debates.

Further, the practice and protocol is that the parties are encouraged to raise challenges and reserve position should such issues, errors or challenges be needed at a potential enforcement stage. Staying silent is not an option.

Clients expect efficient statutory dispute resolution and the suggestion that clients ought to head off to court for an injunction runs absolutely counter to this. Time is another issue.

In Twintec Ltd vs VolkerFitzpatrick Ltd, the case referenced by Tony, Twintec was able to get speedy access to the court because of court directions that had been given earlier in respect of the parallel court proceedings. The reality for orthodox responding parties is that court intervention will consume considerable time and money, and bring the dispute into the public domain. This latter point ought also not be underestimated. Solicitors, counsel and other party representatives ought not automatically be deemed to be horrid and bullying simply because a jurisdictional or technical challenge has been raised.

That party may need to resist enforcement proceedings and so needs to raise such challenges during the process and to the adjudicator. It can often be the case that a challenge is accepted by a referring party so that, for example, the process is restarted correctly and in respect of the actual dispute. It is wrong to make an Orwellian suggestion that challenges made to an adjudicator are “lawyers’ shenanigans” and are likely to turn the adjudicator against the party making such points. Client confidence would be significantly diminished should the proposition that raising challenges means that you lose gain currency among clients, adjudicators and representatives in adjudication. Not all adjudicators will accept Tony’s propositions: “How threshold jurisdiction works in theory and practice” ought to be on page one in the adjudicator’s handbook. An adjudicator that does not understand, or want to understand, jurisdiction ought to have no role in this form of statutory dispute resolution.

The implicit and irresistible conclusion from Tony’s piece is that those adjudicators who don’t have the skill to address jurisdiction ought to receive training on that very issue. The nominating bodies could readily address this. Adjudicators who think that jurisdictional challenges are simply bad, such that those who raise the challenges will lose, ought to receive training. Adjudicators who think they can resolve disputes without having any basic understanding of law ought to receive training. There will be a number of adjudicators who disagree with Tony and it is incumbent upon those people to train the other adjudicators.

It is wrong of Tony to shift the real problem onto the “representatives in adjudication” - those representatives have professional obligations and a duty to raise issues to the adjudicator. Failure to do so can have serious professional consequences for “representatives in adjudication”.

Time for a re-think?

Hamish Lal is head of construction at Jones Day London