Like most adjudicators, over the years I have had more than one of my decisions scrutinised by the courts. Therefore, I was as interested as the next adjudicator to find out what Coulson J was going to say about the “perfect adjudicator’s decision” when he spoke at the SCL meeting last week.
I wasn’t disappointed. Coulson J set out his road-map of what I could and should do to maximise the parties’ chances of having one of my decisions enforced. He called this road-map his “seven golden rules of adjudication“.
I made a note of the rules (business cards are very handy for making notes, a modern day version of the proverbial fag packet):
- Rule 1: be bold.
- Rule 2: address jurisdiction early and clearly.
- Rule 3: identify and deal with issue(s).
- Rule 4: be fair.
- Rule 5: set out a clear result.
- Rule 6: do it on time.
- Rule 7: don’t make silly mistakes.
Rule 6 particularly interested me. Not because of Cubitt v Fleetglade, but because Coulson J was really talking about what has been referred to as “creep”.
Coulson J suggested that adjudicators must get hold of the process at an early stage and decide whether they can deal with the dispute in the time allowed. He referred to Enterprise v McFadden, where the adjudicator did not ask the right questions at the outset, and allowed time to slip by, ie “creep”. Last week wasn’t the first time that I’ve heard him talk about creep in adjudication, and I don’t think the criticism of adjudicators is entirely fair.
Coulson J described the adjudicator in Enterprise as reactive, but often there is little the adjudicator can do if the parties agree to extend the timetable, or acquiesce when one party delays. An adjudicator may have wide discretion under the Scheme for Construction Contracts 1998 (paragraph 13), and other adjudication procedure rules, to set the timetable etc., but ultimately the parties can, and often do, agree to extend that timetable. It is one thing for the court to confirm that an adjudicator may refuse to consider last minute submissions but, in practice, it is entirely different to suggest that the adjudicator can tell both parties that neither of them can have more time.
Creep may also be inadvertent. For example, in a recent adjudication, I directed that the parties should attend a meeting with me. (I find a meeting is often a time and cost-effective way of getting to the heart of the dispute.) However, for reasons outside of every one’s control (volcanic ash to name just one thing), the parties were simply unable to arrange a meeting in the time allowed in my directions. The meeting got delayed and the whole timetable had to be put back.
I had allowed creep, but was I right to do so? What was more important? To allow the timetable to creep, or to press-on with the original timetable?
I believe that it is for the adjudicator to judge (sorry Sir Peter!). The adjudicator is the one who has the facts before him, has a feel for the complexity of the dispute and an idea of how the parties are behaving when he has to decide these types of issues. If he insists on no creep, it is just as likely that the parties will say that he is being unfair, and cry “breach of natural justice” on enforcement. But that is rule 4 (and something for another day).
