It’s time to shake up adjudication

A recent edition of the Law Society Gazette published thoughts on possible reforms to our construction adjudication system. This nudge for improvements is the initiative of solicitor Tim Seal (ex Pinsent Masons and now at Ridgemont). This chap knows his adjudication stuff, and I detect he is somewhat miffed – and he has a point..

It all began to come out at an evening seminar forum with Tim Seal, Anneliese Day KC, Justin Sullivan and yours truly. Tim is a tad perplexed by the quality of adjudicators’ decisions by those insufficiently experienced in deciding disputes at high speed. While the disputing parties can agree on an individual to act as adjudicator, it is more common for the referring (claimant) party to go to an adjudicator nominating body (ANB) such as the RICS, which then selects one from its panel. The snag is that some of us on the panel are getting long in the tooth – succession is a problem. We old hands, with 25 years of adjudicating, have not only learnt oodles but also moulded our process to turn rough justice in 28 days into something akin to sensible, well-reasoned decisions. My plea at the seminar was for aggressive training of new adjudicators. Yes, agreed Anneliese Day KC – and with the significant inclusion of women adjudicators.

Tim Seal is not alone in his plea for more competent adjudicators on the nursery slopes. In forewords to the 2022 and 2023 King’s College London adjudication reports, two judges mentioned having picked up mutterings about “biased decisions”.

Those who do get appointments are walking on thin ice in case they upset what the nominating bodies call customers. adjudicators who upset an ANB customer find themselves ‘resting’

So, thin quality, bias and a lack of competence are all coming up as issues. But there is more. There are now too many folk vying – no, I mean scrambling – to be appointed as an adjudicator and simply waiting for a titbit from the master’s table. They are not practising enough. But there is even more. Those who do get appointments by the grace of God are walking on thin ice in case they upset what the nominating bodies call customers. Adjudicators who upset an ANB customer find themselves “resting”, courtesy of the peeved ANB. The ANBs need scrutineers. Bad outcomes in adjudication are not always down to a lack of credentials on the part of the adjudicator; we need to scrutinise the influence of ANBs. And there is more – let’s drill down.

As to competence or training, the RICS tries its best. Its diploma in adjudication in the construction industry is 420 hours of online learning at £4,703 inclusive of VAT. If Tim Seal is disappointed in quality, well, er, perhaps the course is not tickety-boo. To be fair, fathoming a construction dispute in 28 days needs a fair amount of in-depth knowledge of law at degree level. A diploma online is lightweight. The RICS could do well by focusing on courses about the plethora of construction contract documents, such as JCT and the like, or leave it all to a learning institute like King’s College London.

>>Also read: How to look for and find confidence in UK construction

>>Also read: Act now and make the new year a time of real change

Forget the idea that the adjudicator can do a look-sniff. The task now is different. Solicitors and barristers are raised on principles, concepts and standards not anywhere near the crash-bang-wallop of a 28-day decision. Lawyers would go to the gallows rejecting the idea of rough justice. And construction adjudication is pretty much “rough justice” – first described so by Mr Justice Dyson in Macob vs Morrison (1999), an observation still regarded as sound. But parliament gave us this device: gave us an interim binding decision and underscored the fact that the disappointed party could go on to litigate and arbitrate. The sort of bad outcomes that Tim Seal complains about is what we all bought into. But 28-day adjudication in these 25 years has proved to be a mainstream dispute resolution system in its own right, producing de-facto final resolutions of most of the disputes referred to an adjudicator. The Tim Seals of this world are not complaining about what adjudication has morphed into. His demand is for adjudicators to have credentials to cope with this shift. And I agree. But how?

Start with formal qualifications in topics in law, such as contract, evidence, tort. To be pitched and examined at the highest, toughest level. Go further: the modern adjudicator will be experienced in interpretation of contracts, of statute, also company law, and especially insolvency. There is more, such as good faith and exclusion clauses, and more, and more. Let’s have tough exams about practice and procedure in adjudication. Next, go to technical qualifications. High-speed adjudication requires those who know about building and civil engineering works, know about concrete, earthworks, superstructure, roofing and more, know about measurement of the works, about the plethora of contract documents – and the ducking and diving.

Best of all for good decision-making: let’s stop ANBs imposing their whims on adjudicators. Security of tenure is a must. It protects the adjudicator from fear of getting on the wrong side of so-called customers and the ANBs themselves, so that he or she can decide the case without fear or favour – and won’t require nerves of steel to do so. The system of patronage in adjudication is the devil’s work – it has to go.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple