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Should adjudicators act judicially?

A few weeks ago I read about a talk by Lord Hamilton, the president of the Scottish Court of Session, on adjudicator’s acting judicially and something called the Statement of Principles of Judicial Ethics for the Scottish Judiciary (see Tony Bingham, Building, 1 July 2011). Tony made the talk sound interesting so I googled it and took a look for myself. It is an interesting paper and well worth a read, if you have the time. Although it refers primarily to adjudication in Scotland, there is no reason why the principles advanced by Lord Hamilton cannot apply equally south of the border. In fact, a new English judiciary guide has recently been published.

At the outset, Lord Hamilton poses the question:

“What has acting judicially to do with adjudicators?”

After all, as he notes, adjudicators are not judges and that they are not even arbitrators (although many of us may act in both capacities).

He also poses the question of whether judicial constraints should apply to adjudicators as:

  • Adjudicators perform “the important function of deciding issues which are in dispute between competing parties”.
  • Adjudicators’ decisions are “of such practical importance to [the] parties”.

Lord Hamilton refers to the well known intention of adjudication to be a “a speedy mechanism for settling disputes… on a provisional interim basis” (Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] EWHC Technology 254). He acknowledges that despite this sentiment, very often the adjudicator’s decision determines the parties’ position on a final basis. He notes that this may arise because of cost, but may also be because of the high quality of adjudicators’ decisions.

Lord Hamilton goes on to note that “the importance of getting it right is difficult to overstate”, but that adjudicators’ decisions are “not immune from challenge in the courts”. Many of us have experienced that first hand, sometimes to our cost.

So, should we be looking to guidance prepared for the judiciary and adopting some of the values?

The Scottish Statement

Lord Hamilton suggests that there is something in the Scottish Statement (which it based on the Bangalore Principles of Judicial Conduct – yes I looked them up too!) that could help adjudicators. He cites the six values and suggests that something of each one could apply to adjudication. They are:

  • Independence.
  • Impartiality.
  • Integrity.
  • Propriety.
  • Equality.
  • Competence and diligence.

I’d like to think most practitioners would agree with Lord Hamilton. I’d also rather hope that all adjudicators have something of these six values in mind whenever they accept an adjudication appointment.

Natural justice by another name

It seems to me that, in adjudication, several of these values are caught under the broad umbrella of natural justice (for example, impartiality, integrity and propriety). As we know, adjudicators are bound to comply with the rules of natural justice, which means that parties have a right to a fair hearing by an impartial tribunal. Adjudicators also have a statutory duty to act impartially (section 108(2)(e), Construction Act 1996).

Impartiality equals a lack of bias

Impartiality suggests a lack of bias, whether actual or apparent. Bias in adjudication is an issue that has exercised the courts on numerous occasions, both north and south of the border. It is easy to say that the adjudicator should have no financial or personal interest in the dispute, or one of the parties to the dispute, but we are seeing more and more arguments about what may amount to bias, particularly apparent bias.

It is easy to say, but I think that if there is any doubt about the appointment, the adjudicator should just inform the parties and then let them decide whether they want him to proceed. As Lord Hamilton notes:

“It may be that circumstances will occur where, because of prior commitments or acquaintanceship, apparent bias cannot be avoided.”

Competence and diligence

How often, I wonder, have parties questioned the competence and diligence of an adjudicator?

Lord Hamilton suggests that adjudicators have a responsibility to ensure that they are “fully equipped with requisite knowledge”. This includes some knowledge of the law, although it may not extend to a complete understanding (since adjudicators can seek legal guidance), but does include knowing what is happening in the world of construction, developments in construction law and so on.

He goes on to look at individual appointments, and suggests that sufficient time should be devoted to each one. If an adjudicator hasn’t got the time, then perhaps he shouldn’t accept the appointment. Even the most popular adjudicators shouldn’t take on too much work, especially given the scope of many adjudications goes far beyond what may have been envisaged back in the 1990’s when parliament was debating the “at any time” nature of this 28-day procedure. It may have been thought that adjudication was just about payment, or a lack of it, but adjudication has developed far beyond that to be a sophisticated means of resolving all manner of disputes, large and small.

Sound advice indeed.

A little holiday reading

It may be that Lord Hamilton’s paper doesn’t really tell us anything new, but sometimes it is good just to be reminded all the same.

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