Edward Davies has written a blog post about time, and the balance lawyers have to strike between giving their advice in the timescale required by the client, and also ensuring that they take sufficient time to ensure that that advice is correct.
In an adjudication context, as an adjudicator, time is the most challenging aspect of all.
The size and nature of a claim will determine how long the adjudicator needs to reach his decision, and the attitude of the parties will depend on how long they are prepared to give the adjudicator to reach that decision. (The Construction Act 1996 requires the adjudicator to reach his decision within 28 days, or 42 days if the referring party agrees to extend the time allowed. Any longer, and both parties must agree to the extension.)
The guidance given by the court in CIB Properties Ltd v Birse Construction Ltd is helpful in practice as it allows an adjudicator to resign if he doesn’t think he can consider all the issues in the time given, or is allowed by the parties.
In CIB v Birse, the referring party made a claim in adjudication for approximately £16 million. By the end of the adjudication, which took over 3 months, about 150 lever arch files of papers were before the adjudicator. The adjudicator awarded CIB just over £2 million.
In enforcement proceedings, the responding party (Birse) alleged that the size and complexity of the dispute made it impossible for the adjudicator to resolve it fairly. The court disagreed. It stated that the test was whether the adjudicator was able to reach a fair decision within the time allowed by the parties. In this case, the adjudicator had discharged his duty as he had considered carefully how to conduct the adjudication fairly at all stages of the adjudication.
What has been the effect of CIB v Birse?
Since this decision, there has been a noticeable reduction in the number of late nights that I have had to work, but not an equal number of occasions when I have had to resign!
I find that if I ask the parties for more time, explaining my reasons why that time is required, more often than not, they will agree to the extension. The alternative (resignation) is often more unpalatable (given the wasted costs involved), than waiting a few extra days for my decision.