Practical Law

Way back in the depths of time (well January 2009 to be exact), I first wrote about how I would like to see a pupillage system for budding adjudicators. At the time, I said it was to address the fact that the process is now far more complex than was envisaged when it all started.

Since then, I have elaborated on my view that we need to offer practical, hands-on experience to budding adjudicators and I’ve told you all about my mentoring scheme. I’m not alone in offering a mentoring scheme, as the judgment in Dickie & Moore Ltd v McLeish and others demonstrates. However, the question remains: should adjudicator mentoring rest in the hands of a few concerned individuals, or should it be more structured?

Dickie & Moore Ltd v McLeish and others

This was a fairly familiar adjudication enforcement before Lord Doherty in the Scottish courts. The contractor (Dickie & Moore) succeeded in an adjudication and, when the adjudicator’s decision went unpaid, issued court proceedings to get its money.

As we often see, the employer (the Lauren McLeish Trust) raised a number of issues to challenge enforcement. Three of those challenges failed but the crystallisation argument (that the dispute had not crystallised at the time of the adjudication notice) succeeded, meaning that the adjudicator lacked jurisdiction to hear the dispute and his decision was not enforced.

Of the three challenges that failed, one related to who the correct party to the adjudication was, one was about whether the adjudicator failed to exhaust his jurisdiction and the final one – and the one that interests me – was whether the adjudicator had breached the rules of natural justice by allowing his pupil adjudicator to provide assistance to him during the adjudication.

Pupil involvement

The judge explained that Mr Len Bunton is a “very experienced adjudicator” who made the parties aware that he had a pupil adjudicator, Mr Torquil Murray, working with him to obtain adjudication experience. Neither party objected. They only discovered that the pupil had provided assistance with the administration of the adjudication, and was to be paid for this time, when the adjudicator issued his fee-note.

The pupil was given access to the adjudication documents and attended hearings. He was also kept informed by the adjudicator of developments as the adjudication progressed, including seeing late submissions that the adjudicator refused to allow as part of the process so he may see the “sort of tactic which adjudicators had to beware of”. As part of the learning process, the pupil was also encouraged to set out his views on a number of issues, including on the crystallisation and jurisdiction points. The adjudicator planned to read these after the adjudication was over.

Additional tasks included taking notes of the meetings and producing action points, populating and updating the Scott Schedule as the adjudication progressed (the pupil is a quantity surveyor) and proof reading the adjudicator’s decision. It was these tasks that the employer objected to, arguing that “an opportunity had been afforded for injustice to be done” as the parties had not been given an opportunity to comment on the pupil’s assistance or advice.

The judge concluded that the pupil had not provided any quantity surveying advice to the adjudicator and the tasks were “essentially of an administrative and checking nature”. The adjudicator had made “all of the material decisions on the matters in issue”. It was unfortunate that he had not told the parties what the pupil was doing and he ought to have done so. However, his failure to do so was not a material breach of the rules of natural justice.

Duty to assist 

The judge noted that the adjudicator:

“… considered that he had a duty to assist those who wished to gain experience of adjudication (with a view to their acting as adjudicators in the future)… he had acted as a pupil master on several occasions.”

Pausing there, I agree with Len.

I think we do have a duty to ensure there is succession planning, and that we are preparing budding adjudicators with the tools necessary to deal with the complex process that adjudication has become. I’m not alone in thinking that we are required to produce decisions in a climate where those decisions, and the reasoning for them, are coming under greater scrutiny. This may reflect the fact that adjudication is an integral part of the litigation landscape, but I perceive we are moving (if we haven’t already moved) to a situation where the standard required is no different to that expected of an arbitrator, but without the luxury of the time to reflect that is an integral part of the arbitration process.

What do I do?

To give me the flexibility to involve a pupil adjudicator, I always include the following term in my T&Cs:

“Subject to prior notification and obtaining consent of the parties, Matthew Molloy may involve a pupil for training purposes.”

I select pupils who have satisfied the academic requirements to be included on either the CIArb or RICS panel, typically a Diploma in Adjudication or an LLM/MSc with a decision writing module. The pupil undertakes to treat all matters as confidential and does not get paid.

My approach is then to allow a lag between the real-time events as they unfold in the adjudication, and when the pupil deals with them. This generally proceeds as follows:

• Once a suitable case comes in, I invite the proposed pupil to confirm whether they have any conflict with the parties names.
• If there is no conflict,  once the referral is served I forward the pupil’s CV to the parties and ask them to confirm whether they have any objections to the individual shadowing me in the role of pupil. I state that, for the sake of clarity, the pupil will not undertake any procedural or substantive tasks and will be required to treat the proceedings as confidential.
• Subject to there being no objection, I forward the initial enquiry (either direct or from an ANB) to the pupil and ask them to respond. They respond to me as if they were responding to the ANB/enquirer.
• I then forward the confirmation of appointment and ask the pupil to draft and send (to me) their first communication to the parties.
• I then forward (or provide access to) the referral and ask the pupil to draft directions. Again, these are sent to me, not the parties.
• Thereafter I will forward to the pupil jurisdictional challenges, other relevant correspondence and the parties’ submissions. All the pupil’s responses will be addressed to the parties but are sent to me.
• The pupil will attend any hearings and site inspection as an observer only.
• The pupil will prepare a decision. We exchange decisions after the time for expiry of corrections of errors has expired.
• We will then have a debrief.
• Once the pupil has shadowed me on three occasions (and produced three decisions), I write a letter to that effect.

Conclusion

I would be disappointed if this case results in experienced adjudicators being reluctant to have pupils. In my view, if done correctly, the industry will ultimately benefit if we have budding adjudicators coming through that have gained some practical experience on live adjudications. It will also assist in helping them get on to ANB panels:

“If you are not on a panel, how to do you get experience? If you are inexperienced, how do you get nominated? In those circumstances, what chance do you have of producing a decision (let alone three) that would allow you to be considered for inclusion?”

And going back to my opening point, for want of sounding like a broken record, I think we need a formal pupillage system. Despite all of our best intentions, it should not be left to concerned and well-meaning individuals to organise and administer the training of budding adjudicators.