There is no doubt that construction adjudication has become much more technical since its introduction in 1998. Those experienced in adjudication will be familiar with the nuances of pre-adjudication tactics, jurisdictional challenges, the best ways of getting time extensions and so on. Once an adjudication starts it goes at such speed that decisions regarding procedure, challenges, submissions and the like have to be made quickly. Enormous submissions are sometimes prepared in a timescale that would be unimaginable in arbitration or litigation.
As a result, adjudication is becoming less suitable for litigants in person. While the adjudicator knows that the unrepresented party is likely to lack legal knowledge, and will therefore manage the proceedings accordingly, there’s only so far the adjudicator can or should go before the other side shouts “unfair“.
In the vast majority of disputes parties therefore appoint someone to represent them, be that a solicitor, barrister, surveyor or engineer, and it’s vital that the parties appoint the right person for the job. In my experience, just as a good representative can turn a weak case into an outstanding one, a bad representative can easily lose an otherwise good case by failing to submit the right evidence or make the right arguments.
So who is the right person for the job?
Well, the first obvious point is that the representative should be thoroughly familiar with the adjudication process and, if possible, have previous experience of running adjudications. The recent case of Aceramais Holdings v Hadleigh Partnerships, is a worthwhile lesson for appointing someone who really understands the workings of the process. In that case, six days after the Notice of Adjudication was served, Aceramais’ solicitors issued proceedings seeking a without notice injunction to prevent the adjudication proceeding. Given the clear wording of section 108 of the Construction Act 1996 (that is, the right to refer a dispute “at any time“) and the guidance already given by the TCC on stays (for example, DGT Steel v Cubitt Building), it was unsurprising when the court refused the injunction. The adjudicator pressed on, eventually deciding that Aceramais had a liability of approximately £800,000. While we don’t know what Aceramais’ instructions to their solicitors were, attempting to stop the adjudication by seeking an injunction certainly didn’t seem to be the most prudent approach.
Do you need a lawyer?
There are many lawyers who now specialise in adjudication, but I don’t think that the perfect representative necessarily has to be a lawyer.
I have come across many excellent non-legally qualified representatives who can hold their own against some of the best lawyers. Most lawyers would also acknowledge that it’s not always financially viable to use them for all types of dispute. However, I do have one warning – just like some lawyers, there are plenty of lay representatives that simply don’t know enough about the law of adjudication. Coulson J gave a scathing account of such a representative in Michael John Construction v Golledge, describing some of the points made by the lay representative during the adjudication as “unfair”, “wholly irrelevant” and “a thoroughly bad point” (ouch).
There is now a plethora of adjudication training courses run by bodies such as the RICS, the Chartered Institute of Arbitrators (CIArb), King’s College London and the College of Estate Management, and both lawyers and lay representatives are signing-up to learn more about adjudication. Professional organisations are also ensuring that their members have to comply with standards equivalent to those of lawyers when representing parties. For example, the RICS practice statement, Surveyors acting as advocates, provides mandatory rules which chartered surveyors must comply with when representing parties in front of tribunals.
So like most professional things in life, the right representative probably has to have the right mix of experience and qualifications. Oh, and it’s probably quite important that you get on with them as well – adjudication tends to result in lots of late nights in cramped offices finishing submissions on a tight deadline, and you wouldn’t want to be doing that with someone who irritates the hell out of you!