I was recently asked whether I think there are any construction disputes that are unsuitable for adjudication.
My answer was simple: no, but…
I believe all construction disputes can be dealt with by an adjudicator provided (and it is a big proviso) that the parties are able to agree a timetable that allows the adjudicator to reach his decision fairly in the time allowed. We have to accept that not all disputes can be dealt with in the 28 (or 42) days allowed by section 108(2) of the Construction Act 1996, but that doesn’t mean adjudication is not the most appropriate method to resolve the parties’ dispute. After all, the majority of adjudicators’ decisions are honoured by the parties without further recourse to the courts or arbitration. That suggests that even if the Act says one thing, and judges through case law support the Act, the industry has a slightly different view of things.
Underpinning all of this is the issue of fairness. “Fair” doesn’t appear in the Act, or the Scheme for Construction Contracts 1998, but a body of case law has developed expanding the rules of natural justice and, in particular, the duty to act fairly to adjudicators. We have seen a number of judgments where what the adjudicator has done (or not done) has been the subject of judicial consideration.
Dealing with a large and complex dispute in a short period of time (which some would argue an adjudicator cannot do fairly) is commonplace for an adjudicator and, regardless of what the judges may think, we are capable (for the most part), in getting to the root of the dispute and answering the questions asked in the time allowed. After all, parties serve volumes of papers on us these days and we are used to trawling through that forest of paperwork to get to the nub of the dispute.
What helps the adjudicator enormously is the parties acting in a sensible manner and agreeing a mutually acceptable timetable. This may not always be possible, particularly where one party is intransigent and wants the process over as quickly as statute allows. However, it is reaching agreement on the timetable that is important and when the parties do agree, it makes acting as the adjudicator a whole lot easier. I don’t think it matters whether the parties agree the timetable without the adjudicator’s help or not, although I would encourage them to allow the adjudicator to help and suggest ways to deal with issues that arise.
So, back to the question. In my view, the only construction dispute that is unsuitable for adjudication is one where an appropriate timetable cannot be agreed.