I smiled to myself when I read John Redmond’s recent piece in Building magazine, as I know only too well the scenario he describes when talking about parties insisting on having the last word. In John’s example, the parties leave the adjudicator with just 12 hours to reach his decision after the final submission has been made. In my experience, it happens all too often and, sometimes, having 12 hours would be a luxury!
It’s all in the drafting
I agree with John that parties should write the referral and response in a way that ensures the adjudicator understands what the dispute is actually about from the outset. I completely endorse his view that they should remember they are not preparing particulars of claim for use in court proceedings, which may be accompanied by witness statements and experts’ reports. Instead, the parties should focus on the fact that the referral (and the response) may be (or is that should be?) the only documents that the adjudicator sees.
To borrow from Lynne McCafferty’s very helpful note on drafting the referral:
“[It] should be carefully and clearly drafted. It should be succinct and free from jargon or technical terminology so far as possible. In particular, the referral notice should:
- Set out the detail of the factual and legal basis of the referring party’s case fully. A chronology of events is likely to be useful.
- Refer to the relevant contractual provisions and explain the basis on which the claim is brought.
- Be persuasive and argumentative.
- Be supported by evidence.
- Cross-refer to all relevant documents and legal authorities and explain how they support the referring party’s case.
- Pre-empt the responding party’s defence and explain why the anticipated defence is incorrect and unmeritorious.
- Include a detailed statement of the redress sought, including any claim for interest.
- Comply with any specific requirements in the applicable adjudication procedure.”
Issuing the decision early
On the question of how an adjudicator should deal with “late” submissions, John suggests that it may be appropriate, in certain circumstances, for the adjudicator to issue his decision early, before the parties have the chance to try again.
I can certainly see some attraction in doing as he suggests, but I can also foresee issues of natural justice being raised, especially by the losing party if the adjudicator is too “quick off the mark” in issuing his decision, thereby shutting out further information. One way to avoid that would be for the adjudicator to advise the parties that he was in a position to proceed to write the decision, telling them when they may expect it by.
I also wonder how often, in practice, the adjudicator would actually be ready to issue his decision early. I usually find that I issue my decision on the day it is due, perhaps a day earlier, but no more than that. Even if I thought I was in a position to write and issue it earlier, there’s a good chance my calendar will not permit me to set aside enough time to do so.
Saying enough is enough
An alternative approach would be to draw a line and advise the parties that further submissions will not be acceptable. Again, the adjudicator has to tread carefully, not least because (as John also points out) the Scheme for Construction Contracts 1998 requires the adjudicator to consider information submitted to him (paragraph 17).
I think that obligation has to be balanced with the adjudicator’s right to control the process (paragraph 13 of the Scheme). We know from Ramsey J’s judgment in GPS Marine v Ringway Infrastructure that an adjudicator may refuse to consider a submission (there it was a rejoinder, served two days before the adjudicator’s decision was due and after the adjudicator had said that the rejoinder should not be served).
Ramsey J eloquently summarised the position when he said:
“The Adjudicator was entitled to and needed to limit the number of rounds of submissions…”
“…parties to adjudication feel the need to keep making further comment on what the other party has said but the timescale in adjudication does not permit this.”
Despite the court’s endorsement in GPS, I still think an adjudicator needs to take care. It may appear to be a green light giving adjudicator’s the right to refuse to consider a submission. However, if the adjudicator gets it wrong, there undoubtedly will be, at the very least, an allegation of a breach of the rules of natural justice. There always is!