Nowadays, it is common to see businesses advertising themselves as being 24/7, meaning they are open all day, every day. But are they truly 24/7 businesses, manned regardless of the time or day, or is it just a euphemism for being there when you need them, within reason?
I’d suggest the latter. In my view, the concept of 24/7 applies to lots of businesses, especially in legal circles. I have said previously that I am, at least in theory, a 24/7 adjudicator. Sometimes there just aren’t enough hours in the day and I have, on a number of occasions, been known to work through the night (and hands up those who haven’t been there, done that) and to take work away with me on holiday (I suspect less hands up for that one). It’s not quite the same as being the all-night garage down the road, but I suspect it isn’t often that a client really needs an adjudicator in the small hours.
So, if an adjudicator is meant to be available to the parties 24/7, what happens when he wants to go on holiday? Is it ever acceptable for the adjudicator to go on holiday during the course of an adjudication, or to accept an appointment which spans a holiday?
My view is that it depends on the circumstances. Providing the holiday does not prevent the adjudicator from dealing with the adjudication or he makes it clear to the parties before his appointment and they agree to proceed in that knowledge, then there should be no issue.
However, in reaching that conclusion, both the adjudicator and the parties have to balance a number of issues:
- How long is the planned holiday? A long weekend away is not quite the same as a 2-week vacation. There may be no need to disclose the former, but I would definitely suggest the parties need to know about the latter.
- The adjudicator has to reach his decision within 28/42 days (or such other time as agreed by the parties). It may be common for an adjudication to last much longer than this, but it is what the referring party wants that is important. They need to be informed if you are going to disappear and be uncontactable for any length of time.
- The adjudicator has the power (under the Scheme for Construction Contracts 1998 and other adjudication rules, such as TeCSA) to decide on the procedure for the adjudication, which may include when the parties’ submissions are served, what meetings may be convened and whether it is necessary to visit site or instruct third party experts. Will the holiday fall when it would be necessary or desirable to do any of this?
- Is the adjudicator willing to work while on holiday? Will his family understand if he does? Never under-estimate the powerful pull of your loved ones wanting you to do something while you are trying to work.
- Will the adjudicator have the necessary facilities to do work while he is away? We may live in an electronic age, but not every holiday destination is well connected with WiFi access (anyone familiar with the highlands of Scotland or the hills of England and Wales will understand this!).
If the adjudicator is going to be on holiday during an adjudication, probably the best time to be away is during the early stages when the parties are still making their submissions. Although you may need to be on hand to deal with a jurisdictional challenge or timetabling issues promptly, the majority of your work will not have started in earnest.