Regular readers of my blog (and followers of PLC Construction) may be forgiven for thinking that I have a crystal ball and can see into the future, after writing last week about without prejudice, only for the very same topic to appear in a Coulson J judgment later the same day.
Having discussed without prejudice last week, I will leave that for another day. However, other aspects of Coulson J’s judgment merit attention, particular his words at paragraph 11.
If you are unfamiliar with what Coulson J said, he was talking about an adjudicator’s “entitlement” to ask the parties questions and to take into account their responses when deciding the dispute referred to him. Here is an extract of paragraph 11:
“[The adjudicator] was entitled to make these enquiries and to take account of the responses. He was obliged to decide the dispute that was referred to him… If the adjudicator needed further information in order to allow him to answer that question properly, he was entitled, indeed obliged, to ask for it. An adjudicator should not stand mutely by, hoping that one side or the other gives him the information that he wants: if he considers that he lacks vital information, he must take the initiative and ask for it directly.”
Strong words indeed. I was particularly struck by Coulson J’s suggestion that the adjudicator is obliged to ask questions or request further information, and that he should take the initiative if he thinks the papers lack vital information.
Is Coulson J right?
In Volker, the parties’ sub-contract incorporated the NEC3 standard form of sub-contract, including its adjudication clause (clause W2.3). The adjudication clause permitted the adjudicator to take the initiative and to request further information from the parties. It is strikingly similar to paragraph 13 of the Scheme for Construction Contracts 1998.
Both the sub-contract and the Scheme suggest the adjudicator’s role is inquisitorial, but I think adjudicators have to be careful and have to get the balance just right. There is a line to be drawn between, on the one hand, an adjudicator making an inquiry or asking for information and, on the other hand, helping (or being perceived to help) a party to prove its case. The adjudicator also has to be careful not to stray beyond his jurisdiction, which is set out in the notice of intention to refer. If being inquisitive takes him along a path that wasn’t part of the original dispute, the adjudicator may find his decision unenforceable (McAlpine PPS Pipeline Systems Joint Venture v Transco plc).
As ever in adjudication, there are many shades of grey. If the adjudicator is asking about information that has previously been submitted in the adjudication and made available to the other side, it may be less of a concern. In contrast, if the adjudicator requests evidence or records that have not been previously been provided (especially if they have been requested by the other side and not given), that might be seen as enabling a party to prove its case. What may be a breach of natural justice will depend on the facts, but we adjudicators need to be careful, just the same.