REUTERS | Tobias Schwarz

Should the adjudicator be told about declarations during an adjudication?

Whether an adjudicator should be told about court declarations under CPR Part 8 during an adjudication was the jump out point for me when I read Edwards-Stuart J’s judgment in Glendalough Associated SA v Harris Calnan Construction Co Ltd. However, in contrast to the same judge’s decision in McGee v Gear last year, this time he did want part of the judgment communicated to the adjudicator before the adjudicator made his decision.

CPR Part 8

As I have said before, CPR Part 8 describes itself as an “alternative procedure” for situations when the court’s decision is required “on a question which is unlikely to involve a substantial dispute of fact”. The TCC guide refers to Part 8 in the context of interpreting a statute or construing a contract. In the context of an adjudication, we often see it used to construe contract terms, just as the TCC Guide envisages.

Declarations in Glendalough and McGee

In Glendalough v HCC, the court considered two questions in response to the employer’s declaratory relief application:

Although the court declared the answer to the first question as yes, and gave a provisional view on the second (also yes), it was only the first answer and declaration that was to be shared with the adjudicator straightaway. As the second question had been referred to the adjudicator to decide, it was a matter for the adjudicator, and the court’s provisional view was not to be shared with him before he made his decision.

In McGee v Gear, the employer sought a court declaration that the contractor was barred from claiming loss and expense under a particular contract clause. The court refused to grant the declaration, saying that it would unduly interfere with the ongoing adjudication, in which the adjudicator’s decision was due only two days after judgment was handed down. It also did not think the declaration sought reflected the true meaning of the contract. It ordered that the draft judgment should not be shared with the adjudicator before he made his decision.

Knowing the outcome

I can see the rationale in both cases, but I would prefer to have my decision consistent with a judge’s (binding) finding if possible. I would prefer to know what the court has decided, even if I only have (to borrow from Edwards-Stuart J in McGee), ” just over one working day” to make my decision. I accept that that is a very short time but, in adjudication, we often work against the clock, with very little time, because the parties insist of providing submissions at the eleventh hour. The court may have thought it was an “unacceptable imposition on an adjudicator and one that may well result in unfairness, misunderstandings or mistakes”, but it’s not unusual (to borrow a line from Tom Jones).

A final thought

Edwards-Stuart J noted in Glendalough v HCC, that if he had thought the letter of intent was not capable of being a construction contract, he would have had to consider whether to make a declaration to that effect and whether to “pre-empt any decision by the adjudicator”.

That suggests to me that he would have directed that the adjudicator was told if the court thought he did not have jurisdiction to decide the dispute. I can’t see why there should be a distinction nor why he couldn’t make the same decision, when he clearly thought, albeit provisionally, that the adjudicator did have jurisdiction to decide the dispute.

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