REUTERS | Jitendra Prakash

Expert determination and adjudication: an adjudicator’s view

I’ve read Shy Jackson’s post this week, which throws out some interesting ideas on adjudication, expert determination and construction dispute resolution.

Adjudication and expert determination

I am sometimes asked to act as an expert to determine a dispute, but, so far in my experience, that happens outside of the world of adjudication.

To a certain extent, I take the view that the parties to any dispute are entitled to agree any method to solve their dispute. However, in adjudication, this is subject to two important caveats:

  • The statutory power to refer a dispute to adjudication at any time (section 108 of the Housing Grants, Construction and Regeneration Act 1996).
  • As Shy refers to, the TCC’s oversight of the adjudication process.

So, if a party wants to appoint me as an expert to determine a dispute once and for all, I think I’d rather accept that appointment separately from any adjudication process.

For example, if the parties have a simple payment dispute, one party could send a letter before action suggesting expert determination of the dispute, failing which that party will begin an adjudication. However, in my experience, adjudication can quickly turn “tit for tat”, with one party’s reference leading to the other party also referring a dispute, so the risks and advantages of that tactic would need to be carefully weighed.

I do, however, agree that adjudication is not a panacea, and (in an ideal world) the parties to a dispute should always try and take a step back from their battle, to see how the dispute might be resolved most cheaply and effectively for them both. Sometimes that might lead to adjudication, sometimes to mediation, sometimes to a reference to an expert, sometimes to a meeting between managing directors or sometimes to an immediate court action (subject to the pre-action protocol).

Applying expertise in adjudication, as an adjudicator

On some occasions, I’m asked to use my expertise in adjudication. For example, when dealing with a valuation dispute, I may be asked to undertake a valuation exercise myself.

Again, while the parties to adjudication have the opportunity (within reason) to agree to ask me to determine anything they are disputing, it can actually make the job harder as, instead of restricting myself to submissions, I then have to (if necessary) actually value work performed. That can be difficult within a 28 day period.

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