REUTERS | Ilya Naymushin

Meeting the adjudicator

There have only been a couple of TCC cases reported since the new year, so I thought I’d use the lull to revisit the subject of meetings in adjudication, and specifically some of the questions that parties might ask about them.

Why has the adjudicator asked for a meeting?

There is no single answer to this question. Although a good adjudicator should always make clear why he is calling a meeting, I know some adjudicators who will ask for a meeting simply as a more time-efficient means (for the adjudicator anyway) of understanding the dispute. The parties can explain the dispute at the meeting or lead the adjudicator to the relevant evidence in the submissions.

I find meetings particularly useful in two situations:

  • Where the quality of the submissions is poor, a meeting can be of great benefit in making sure that I understand exactly what is being pleaded. This mostly arises with unrepresented parties.
  • Where the matter involves a dispute as to what occurred on site. For example with an extension of time claim, it can be very helpful to question witnesses who were involved during the course of the works.

However, I certainly won’t have a meeting just so the parties can regurgitate their submissions. If I don’t have a meeting then I will normally set out any questions I have in writing.

What format will the meeting take?

This depends on a number of factors including who the adjudicator is and the size of the dispute. The adjudicator should issue an agenda and advise the parties of the purpose of the meeting. If the adjudicator hasn’t done this then I think the parties are quite within their rights to ask.

I will review the submissions before a meeting and make a list of the questions I plan to go through at the meeting. I will warn the parties in advance if I want them to make legal submissions. However, if an adjudicator asks for a legal submission at the meeting without advanced warning then, if the parties don’t feel able to address it properly at the time, in my view, it is reasonable for them to ask for permission to address the matter in writing after the meeting instead.

Some meetings may need to be more formal and take the form of a hearing. For example, I know that Matt has allowed cross examination of experts in complex cases where both parties had counsel. I can certainly see the benefit of that. A challenging cross examination may well reveal more than the adjudicator’s questions which, whilst probing, should not be leading or go to the credibility of the witness.

Whatever the format of the meeting, and even if it is relatively relaxed, the parties should still remember that it is part of a formal process and shouldn’t turn into an unhelpful slanging match. At the beginning of every meeting I acknowledge that the parties may wish to comment on what the other side is saying, but ask them not to interrupt each other. I also make clear that I will stop any comments that are outside the areas I need clarifying.

Who needs to attend the meeting?

Ideally, the adjudicator should indicate who he wants to attend the meeting. For example, by confirming that he only wants to discuss valuation issues, only the quantum experts need attend. Otherwise, the adjudicator’s agenda should be detailed enough so that the parties can decide who should be there.

Even if I am only dealing with non-legal issues (such as quantum), I will not normally object if the parties want their lawyers to attend (as they often do). I appreciate that the parties may feel more comfortable with their lawyers in attendance, even if the lawyers play little part in the meeting.

If the adjudicator hasn’t indicated who he wants to attend, the parties should feel free to ask. They should also give careful thought to who is best suited to deal with the matters in the adjudicator’s agenda. For example, if the claim involves an extension of time, then witnesses who were intimately involved during the course of the works (like the site agent or contract administrator) are likely to be of most assistance.

If the adjudicator doesn’t ask for a particular witness to attend then he shouldn’t criticise a party if they are not at the meeting. If he does, then it could show bias and make the decision unenforceable. That’s what happened in A&S Enterprises Ltd v Kema Holdings Ltd [2004] CILL 2165, where the adjudicator described the failure of a particular witness to attend as “very unhelpful”, despite the fact that he hadn’t asked for that witness to attend. HHJ Seymour QC refused to enforce the decision on the grounds of bias and a breach of natural justice.

Where should the meeting be held?

The adjudicator may well suggest holding the meeting at his office. Alternatively, he might suggest it is held on site, especially if the meeting is to be combined with a site inspection. Otherwise, the parties should reach agreement on where it is held. Remember though, it makes no difference at all to the adjudicator whose meeting rooms he ends up sitting in. A party does not have the upper hand just because it is hosting a meeting.

What to do if the adjudicator doesn’t want a meeting?

If neither party has asked for one and the adjudicator is content that the dispute can be decided without one, in my experience the parties are unlikely to object if no meeting is held. After all, there is no point in having a meeting for the sake of it and running up additional fees.

But what happens if one or both parties has strong feelings that a meeting should be held?

If only one party wants a meeting, but the adjudicator has decided that it’s not necessary, then there is not a lot that can be done. Indeed, even if both parties want a meeting, the adjudicator is still entitled not to hold one if he’s satisfied that he can deal with the dispute without one. However, if both parties ask for a meeting then I think it would be unreasonable for the adjudicator to refuse. The conduct of the adjudication may technically be decided by the adjudicator, but it is the parties’ dispute under their contract. In normal circumstances, if both parties decide they want a meeting then I believe that the request should be granted.

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