Practical Law

As a topic, adjudicators’ reasons have appeared on this page fairly regularly over the years, most often to do with one party alleging that there has been a breach of the rules of natural justice because the reasoning provided is inadequate. Conversely, we seldom see parties arguing before the court on enforcement that the adjudicator wrote too much, that his reasoning was too detailed and overly long.

However, when I was reading Ramsey J’s judgment in WSP v Dalkia, the thought struck me just how much of the judgment was actually obiter.

WSP v Dalkia

WSP V Dalkia is all about whether the parties had given the adjudicator (Tony Bingham) jurisdiction to deal with their dispute. It involved the interpretation of the parties’ contract (including option W1 of the NEC professional services contract terms) and a subsequent consent agreement. Ramsey J concluded the adjudicator did have jurisdiction, and this extended to making a decision about his own jurisdiction. His decision was enforced.

By paragraph 37 the judge had reached the conclusion that the adjudicator had jurisdiction to decide the dispute, but he still published a 99-paragraph judgment (with only 6 paragraphs dealing with “other issues” and providing a summary). By my calculations, that’s about 60% of the judgment that was devoted to obiter issues (such as whether the parties had reached an ad-hoc agreement to confer jurisdiction (they had) and the true meaning of NEC3 clause W1.3(1)).

That got me thinking. I accept that a judge has to set out his reasons, if the issues are argued before him, even if they are obiter due to other findings he makes. Ramsey J accepts this point himself, when he says it is appropriate to deal with the other issues, even though it’s not strictly necessary to do so (paragraph 37, judgment). I think it is helpful to the parties (and others) to know what the judge thinks about all the issues argued before him and may be relevant if the judgment is appealed, when ancillary findings could bite.

However, how would parties to adjudication react if adjudicators started handing down overly-long decisions, addressing every issue and fact put before them?  As with everything adjudication-related, I suspect issues of natural justice would be relevant.

On the one hand, parties will cry foul if they think the adjudicator has overlooked an issue by not mentioning it in his decision, even though by doing so, he is including obiter comments. Setting out your reasoning is seen as part of the decision-making process and it is helpful to do so, to illustrate how you have arrived at the decision you’ve made. It can also be useful when looking at alleged breaches of the rules of natural justice. Was the breach material? Would the outcome have been any different if the adjudicator had done something differently?

Alternatively, there are issues of time and money to consider. In adjudication, we don’t get long to make a decision and the fees-clock is usually ticking when we do. Would it be unreasonable to incur a fee making a finding on a point that wasn’t necessary in view of an earlier finding? In contrast, the parties don’t have to pay for a judge’s time (although, arguably, there is a public cost) and he has much longer to reach a decision. Reserving judgment is a great way of giving oneself time to go away and ponder the issues and the law.

It seems to me that there is no right or wrong answer to this one, it all comes down to that old chestnut of what is reasonable in the circumstances.