Don’t listen to chickens

The first I heard about Discain Project Services Ltd vs Opecprime Development Ltd (case 43 in our adjudication enforcement series) was from a headless chicken. He was on the squawk box shrieking: “Adjudication won’t work any more because Judge Bowsher has decided that adjudicators mustn’t talk to one side without the other.” He squawked on: “You must apply natural justice – it’s all in the judgment; I’ll send it to you now.” I only had one word in reply for my half chicken.

What’s more, after I had got hold of the judgment and read it carefully, I told my headless chicken that the judgment didn’t say anything of the sort it claimed it did. The judge did not say natural justice must apply precisely in the same way as in the High Court, the county court, arbitration, and tribunals. What he said was: “The system created by the Construction Act can only be made to work in practice if some breaches of the rules of natural justice that have no demonstrable consequence are disregarded.”

By the way, the best way I can describe all this natural justice business is to say that any judicial tribunal has to be “fair in all the circumstances”; beyond that, there are no hard and fast rules.

Now let’s be clear, I don’t think you can characterise a QS or architect or engineer adjudicator as a judicial tribunal. But whether that’s right or wrong is irrelevant; the plain fact is that an adjudicator has to be absolutely fair. But if the refereeing process is to get done in 28 days, then the nature of the fairness must be set in that 28-day timeframe. And, if the job of referees is to get to the bottom of the dispute, they will almost always have to speak to parties one at a time, meet them one at a time, and walk a tightrope between them. If I meet with a party or phone a party (and, as an adjudicator, I do), there must be no injury or disadvantage created to the other party. And when I phone that party and obtain information or evidence that is relevant to my decision-making, I have to play fair. I tell the other side what was said of relevance and ask it to make a response.

Of course, judges and tribunals don’t like that sort of approach. They prefer a public trial where everyone turns up for a fight. In adjudication, we like to see the whites of the opponents’ eyes. And sometimes the adjudicator needs to get all the parties around the table, get a cross-examination going and allow the parties to make their point.

Discain was a case where a party made representation to the adjudicator over the phone. There is nothing wrong with that. But the points made were not conveyed promptly to the other side, or so it was said. And, if the other side arguably suffered what the judge described as “demonstrable consequence”, then the fairness rule was broken, the adjudicator fell off the tightrope, and therefore the judge would not instantly make Opecprime obey.

The headless chicken was on the squawk box, shrieking: “Adjudication won’t work any more!” I had a one-word reply

The fundamental procedural difference between adjudication and court proceedings is this: adjudication only works well if it is investigative. The referee makes the process inquisitorial.

He gets to the bottom of the matter on his own initiative … he has to because of the 28 days. But courts are adversarial. The parties prepare their cases and present them as though the judge knows no law and gathers no facts for himself.

Judges understand the difficulty of this new approach. One said: “It is clear that parliament intended that adjudication should be conducted in a manner which those familiar with the grinding detail of the traditional approach of construction disputes apparently find difficult to accept.” Of course, certain folk will rail against this investigative approach. Lawyers hereabouts will rail because they have lived all their professional lives in our traditional system.

Oddly enough, the traditional construction industry dispute business was based on an investigative mentality. The “engineer’s decision” or the “architect’s decision” about certificates, were always born out of an investigation by that professional. This industry understands adjudication far better than the lawyers. Moreover, it was our industry that insisted that disputes would be resolved faster by using industry people. Not many contractors are thrilled to bits with litigation. And I bet Judge Bowsher thought long and hard before interfering.

And if some headless chicken tells you that the adjudicator must meet or discuss the dispute with both sides at the same time, give him that one-word reply. The Discain case does not say that. It says be fair, that’s all.