REUTERS | Lee Jae-Won

Transcribing adjudication hearings: whatever next?

It may be common place for parties to arrange for a daily transcript of court proceedings to be produced, but I’ve just had first-hand experience of parties using transcribers in the adjudication hearings before me.

Why was a transcript necessary?

My example may not be typical of adjudication, but it was appropriate for the case, which was a high value and complex dispute with considerable relevant witness evidence and volumes of documents.

By having a transcript, it meant that there was an accurate record of what was said, which clearly both the parties, their advisors and I benefited from. No confusion and no need for anyone to make copious scribbled notes (we all know how lawyers like to make notes!).

What happened in practice?

The parties agreed to have a transcript, and agreed how it would be paid for (they agreed to split the costs, regardless of the outcome; I’d no jurisdiction to award costs you see). We then had to deal with the practical aspects of how hearingsbefore me would work, allowing (amongst other things) for the concentration span of stenographers:

  • We agreed sessions would last no longer than 90 minutes.
  • For cross examination it was easy, but for more discursive sessions we had to ensure only one person was speaking at a time.
  • For the record, we also needed to make sure each speaker was clearly identified.
  • We agreed a protocol whereby each party had two “hot seats”. I identified the topic (which had been pre-identified in an agreed agenda) and the parties elected which of their witnesses was best placed to speak to or comment on the topic. Those witnesses would then “jump” into their respective “hot seats” and do their bit with me questioning, and them commenting on what was said, if needed.

It worked well in practice.

Adjudication, your flexible friend

This experience reminded me of the flexibility of the adjudication process. It is also an indication of how adjudication is now a far cry from what was originally envisaged by Michael Latham and those responsible for drafting the Construction Act 1996 and the Scheme for Construction Contracts 1998.

Opponents of using adjudication in complex, high value disputes may cite the need for a transcript as reason enough why the process isn’t always suitable for complex, high value disputes. I’d counter that by saying that adjudication has its place in resolving those disputes, just as much as it has its place in resolving much smaller, more straightforward ones. On this occasion it felt right to use whatever assistance was available to the parties to ensure the best outcome for all concerned.

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