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Don’t give a judge an excuse not to enforce you

As an adjudicator, you face a number of hurdles when you go about your daily business of being an adjudicator.

It starts before you even begin work, when you are first approached to be appointed to adjudicate on a matter, and continues throughout the dispute, right up to the crescendo of your involvement, when you hand down your decision.

As long as I have been involved in the process, parties have been coming up with ways of putting more and more hurdles in our way. The one thing that I always tell myself (and anyone else willing to listen to me, like my students) is that it is really important not to give a judge an excuse not to enforce your decision. One could extend that mantra, and say that it is really important that you don’t trip yourself up at any point along the way first.

Rules of natural justice

The principles of natural justice underpin adjudication. This means that each party has the right to a fair hearing and the right to be heard by an impartial tribunal. It all started with Macob v Morrison and continues to this day. Macob was the first adjudication enforcement case and it is often cited because of Dyson J’s reference to a coach and horses being driven through the Scheme for Construction Contracts 1998 if he accepted the arguments advanced on behalf of Morrison (which he didn’t).

However, it is an interesting judgment for other reasons too, not least his description of what adjudication is (and isn’t):

“It is clear that Parliament intended that the adjudication should be conducted in a manner which those familiar with the grinding detail of the traditional approach to the resolution of construction disputes apparently find difficult to accept. But Parliament has not abolished arbitration and litigation of construction disputes. It has merely introduced an intervening provisional stage in the dispute resolution process. Crucially, it has made it clear that decisions of adjudicators are binding and are to be complied with until the dispute is finally resolved.”

Although the principles of natural justice apply throughout the adjudication process, they are thrust into sharp focus at certain points in time.

Don’t forget the Scheme and the Act

In addition to the natural justice principles, it is also worth remembering that paragraph 12(a) of the Scheme for Construction Contracts 1998 requires the adjudicator to act impartially and reflects the duty to act impartially that is set out in section 108(2)(e) of the Construction Act 1996.

Begin at the beginning

The phone rings, a potential appointment beckons. The first thing an adjudicator must consider is whether there will be a conflict of interest (or potential conflict of interest) if the appointment is accepted, otherwise referred to as bias or apparent bias.

To borrow from Dyson LJ again (this time in the Court of Appeal in Amec v Whitefriars):

“Bias is an attitude of mind which prevents the judge from making an objective determination of the issues that he has to resolve. A judge may be biased because he has reason to prefer one outcome of the case to another. He may be biased because he has reason to favour one party rather than another. He may be biased not in favour of one outcome of the dispute but because of a prejudice in favour of or against a particular witness which prevents an impartial assessment of the evidence of that witness. Bias can come in many forms. It may consist of irrational prejudice or it may arise from particular circumstances which, for logical reasons, predispose a judge towards a particular view of the evidence or issues before him.”

The only thing an adjudicator can do is disclose stuff to the parties, the sort of stuff the adjudicator thinks is likely to give rise to one of the parties challenging the appointment and/or the decision down the line. It may be rare for an allegation of bias or apparent bias to succeed, but just occasionally it does and that means your decision will not be enforced (and it can be damaging to your reputation).

Cofely v Bingham is one of the leading cases on this topic. Although it was about an arbitrator, one of the key issues was the relationship between the arbitrator and one of the parties’ representatives, Knowles. It turned out that over a three-year period, 18% of the arbitrator’s appointments and 25% of his income as an arbitrator or adjudicator had been derived from cases involving Knowles. However, the arbitrator had not disclosed any previous appointments where Knowles was a party or a representative of a party. This was despite the CIArb acceptance of nomination form requiring the disclosure of “any involvement, however remote” with either party over the last five years.

Bias and apparent bias is a topic that I have looked at before. Last time I did so, I borrowed a comment from Jonathan and I shall do so again:

“… adjudicators really do need to err on the side of caution, and it would be sensible for them to adopt the principle that, if there is any doubt as to whether an involvement constitutes a conflict of interest, this should be disclosed.”

The principles of natural justice also dictate that if, during the adjudication itself, the adjudicator becomes aware of something that ought to be disclosed, then it should be disclosed immediately. Waiting or failing to disclose it at all will only end up with a natural justice challenge to the adjudicator’s decision. Why give the parties and the judge any ammunition with which to load their gun?

Duties continue throughout the process

During the adjudication process, the principles of impartiality and procedural correctness come to the fore. It is here that an adjudicator can unknowingly trip up on one of the many hurdles before it. It may appear trite to say that an adjudicator should comply with basic principles of procedural fairness, such as:

  • Acting fairly and impartially between the parties.
  • Giving each party an equal and reasonable opportunity to present its case and to deal with its opponent’s case.
  • Ensuring each party is fully apprised of any arguments against it and is given a reasonable opportunity to comment, whether those arguments are raised by its opponent or by the adjudicator.
  • Following the applicable adjudication procedure.

But it is true. Adjudicators should always have these basic principles in mind. We may have a degree of latitude when it comes to how we conduct an adjudication, but we still have to be fair as between the parties. You only have to look at the case law to see that it is easy to fall foul of any number of procedural requirements. Even if you don’t, it may not stop one of the parties arguing that you have. The barrel of the gun is now being loaded.

The end, or is it?

Assuming the adjudicator has reached a decision in time and delivered it promptly, an adjudicator might think that is the end, but that isn’t always the case. The parties often have other ideas and we all know how common enforcement challenges are. At this stage, as the adjudicator, it can feel like you have two loaded barrels pointed firmly at you!

During the enforcement proceedings, the court will pour over what the adjudicator has (or has not) done. In addition to natural justice issues, the court will also look at other things, such as the quality of the decision and the adjudicator’s reasons.

A subject which I often talk about to my students is that just because a decision is enforceable doesn’t mean it’s a good decision (or a good piece of work) and vice versa, that is, just because a decision isn’t enforced doesn’t mean it’s a bad decision or a poor piece of work. There are so many hurdles put in your way by the parties, it’s unsurprising that it is so easy to trip up. It was the Beatles who sang about the “long and winding road, that leads, to your door”. I’m not sure the road in adjudication is very long, but it is certainly full of twists and turns.

MCMS Ltd Matt Molloy

2 thoughts on “Don’t give a judge an excuse not to enforce you

  1. The long and winding road led to my front door, the morning after I issued my last Adjudicator’s Decision, the previous afternoon. Two Sherrif Oficers served me a Sherrif Court writ & citation as second defender (the first defender being the sucessfull Referring Party), with a Plea In Law that I had exceeded my jurisdiction by producing a Decision & decree of reduction should be granted as craved.

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