I’m sure there will be a few people out that suggesting that “it’s not fair” that adjudicators should get paid, even if they screw up when making their decision, leaving the parties with something that is unenforceable and, frankly, worthless. I am of course talking about Akenhead J’s judgment in Systech v PC Harrington.
Systech v PC Harrington
For those who haven’t seen it yet, in a nutshell:
- Systech sued PC Harrington (PCH) for the fees of Philip Doherty, who they employ, and who’d been appointed as the adjudicator in three adjudications between PCH and Tyroddy.
- PCH resisted payment, arguing that as the adjudicator’s three decisions were unenforceable, there had been a total failure of consideration. (Tyroddy had stopped trading the year before, so couldn’t pay, even if it wanted to.)
- Akenhead J held that there had not been a total failure of consideration, since the scope of an adjudicator’s role extends far beyond just writing a decision, it encompasses all the other stuff we do before hand, like looking at submissions, reviewing jurisdictional challenges (yawn), reading the documents and generally managing the parties and the procedure of the adjudication.
I don’t think it’s unfair
Perhaps unsurprisingly, I don’t think this judgment is unfair to the parties. I’m pleased to see the door firmly shut on yet another attack on adjudicators and ways to wriggle out of paying for the work we do.
Over the last couple of years we have seen more and more challenges to adjudicators’ decisions based on allegations of breaches of natural justice. You get to a point where you think there is so little left to challenge, and then up pops another argument, another twist on the meaning of natural justice and what we may (or may not) have taken into account when reaching our decision. It often feels as if you are damned if you do, damned if you don’t.
I think that sometimes, just sometimes, the parties would be better off spending their time (and money) trying to sort out their dispute, rather than spending time (and money) trying to make the adjudication process as hard as possible, or spending even more money trying to avoid the decision, when it is issued. I seem to remember reading somewhere that adjudication is supposed to be an interim procedure, that it isn’t final and binding on the parties. It’s a shame that not everyone remembers that, as they batten down the hatches for battle.
One last thought
The parties also need to ensure that their dispute is referred to a “safe pair of hands”. Systech v PC Harrington is just the latest case that demonstrates the importance of this.