The last word in adjudication

One of the pleasures or problems of being an adjudicator, depending on where you sit, is that you largely control the procedure itself. Whilst under almost all of the applicable rules, the timescales and the extension of the adjudication process are prescribed, it is usually the adjudicator who gets to decide how many submissions each party gets to make. That sounds fine in principle, but can be a thorny issue in practice.

First, the referring party arguably has two shots to start with: the notice and then the referral. That should not to be too objectionable because the referral should only build from the notice and not add new issues to the dispute. So, depending on your view, the referring party starts with one or two submissions.

Then the respondent files their reply or defence, and some guidance from the court is available to an adjudicator here. The rule of natural justice requires, as stated in the decision in CJP Builders vs William Verry, “that each party has a right to be heard and to have its evidence and arguments considered by the tribunal”.

In most disputes the referring party, unsurprisingly, wants to reply. But that puts the referring party at two or three submissions to one from the respondent. So the respondent asks for permission to submit a rejoinder.

Is that an end to matters? If permission for a rejoinder is given, both parties have then had two submissions, although it is arguable the referring party has had three. But, give or take, they are fairly even in substantive submissions at this stage, so this may seem to be a fair result.

The referring party has had the opportunity to prepare at its leisure, launch the process to suit itself and time the adjudication to suit its own resources. None of these opportunities accrue to the respondent

However some adjudicators take the view that the referring party should then have some final right of reply: a surrejoinder. The reason why might not be immediately apparent, but in the court it is commonplace for the claimant party to close the final submissions and some adjudicators regard this as indicative of good practice.

Of course once that approach has been adopted, the referring party is always going to have at least one and arguably two more submissions than the respondent. Some adjudicators describe allowing the referring party the final submission as an application of natural justice. However this reasoning is perhaps open to question.

After all, the referring party has already exercised the opportunity to prepare at its leisure, launch the process to suit itself and time the adjudication to suit its own resources. None of these opportunities, which are arguably tactical advantages, accrue to the respondent. Perhaps therefore natural justice would suggest the submission from the respondent should close matters.

There is little judicial guidance for adjudicators as to this point. In GPS Marine Contractors vs Ringway Infrastructure Services it was noted “in the context of a rapid summary procedure leading to a temporary binding decision, the adjudicator was entitled to and needed to limit the number of rounds of submissions”. This confirms the court’s position that the decision as to the number of submissions is an issue for the adjudicator.

In the GPS Marine case the issue really turned on the timetable of the adjudication rather than the principle of how many submissions each party should have or who should have the last word. The court commented: “The wish to serve a rejoinder two days before the date for the adjudicator’s decision was something which the process had not and could not allow.”

As noted, adjudicators control the adjudication process and most rules give them wide powers in that regard. It is possible to have differing views as to what doing justice to both parties in terms of submissions means. In practice allowing the right of final reply in favour of a referring party often means the process cannot in practice be closed in 28 days and an extension may be necessary. The other technique which can be beneficial to control the process and the volume of submissions is to limit parties at the reply stage to only commenting on new aspects of the other party’s case, which therefore could not be responded to earlier in the process, essentially a response to new material only. Regulating that in practice is of course somewhat harder.

Until case law or parliament says otherwise, it will remain a conundrum for each adjudicator as to whether two submissions for each party or one extra for the referring party equates to natural justice in such a time-limited process.

James Bessey is a partner in the construction department at Cobbetts