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What to reasonably expect from your adjudicator’s decision (part 2)

Formulating the issues

Someone recently asked me who chooses the photographs for our blog, and I explained that it was the good people at Practical Law. It’s quite a tough task to find photographs that relate to the subjects we blog about, so this week I’d pondered suggesting a photograph of a West Highland Terrier.

Let me explain. I wrote this post sitting in my study dog-sitting a friend’s West Highland Terrier, Otis. I was sad to see the little guy go, so I thought a photograph would be a fitting reminder. Also, I was once told that mentioning ones pets in blogs encourages people to read them (I’ve no idea why!). However, I thought I’d let the blog speak for itself rather than try and entice you with a photograph of a dog.

Anyway, as usual I’m digressing.

In part 1 of this blog I looked at how an adjudicator should go about producing a good looking and professional decision. In part 2, I consider a skill that is critical for any adjudicator to possess: the ability to formulate the issues.

Formulating the issues

While it may take the adjudicator relatively little time to formulate the issues, this is a critical part of the decision writing process because, if the adjudicator gets it wrong, his entire decision may be flawed. Worse still, if this leads to the adjudicator answering the wrong question then it might result in the decision being unenforceable for want of jurisdiction.

These are my tips for adjudicators when formulating issues.

Guideline 1: think about where to start

In order to identify the issues and sub-issues the starting point is the redress the referring party seeks, as ultimately these are the questions that must be answered. The adjudicator should determine what issues need to be resolved in order to decide whether or not to grant the redress sought. However, the adjudicator cannot rely on the redress sought alone as this might not identify the actual issues. For example, the redress sought might simply be a request for payment, but the actual issue is whether there has been a breach of the contract.

Guideline 2: formulate at the right time

The referral might well give the adjudicator a good idea of the issues he will have to decide. However, the adjudicator doesn’t know the defences that will be raised, so I would recommend that he waits until the response (or even the reply) before formulating the issues.

Guideline 3: list all of the issues and sub-issues

While the adjudicator might consider that the dispute can be resolved in his finding on the first of a number of issues, he should still list out all of the issues in order that he can demonstrate to the parties that he has understood all of the matters in dispute.

Guideline 4: order the issues logically

The adjudicator should order the issues logically so that he gets to the answer on the redress sought in the most efficient manner. The simplest example is the need to normally consider liability before quantum because, if liability fails, the adjudicator is very unlikely to need to consider quantum.

A more complex (and realistic) example might be as follows. Imagine that our employer, let’s call it Otis Developments, is claiming liquidated damages from a main contractor, Redding Contractors, under a simple bespoke main contract. Redding raises various defences to Otis’s claim and denies that Otis is entitled to any liquidated damages. Redding argues:

  • That it is entitled to a full extension of time for the entire period of delay, and has submitted a comprehensive extension of time claim, including a detailed expert report from an eminent delay analyst.
  • That the contract’s alleged liquidated damages provisions are not enforceable because the rate of liquidated damages constitutes a penalty. Notwithstanding this, Redding says that there are no provisions for liquidated damages in the contract in any event because the “abstract reference to two different rates for liquidated damages” in the pre-start meeting minutes and the provisions for recovery of direct loss and expense in the contract are inconsistent.
  • In the further alternative, that Otis has waived its right to rely on the liquidated damages provisions and/or is estopped from relying on them and/or that the provisions have been varied.

So, where to start? Well, there is no point in dealing with the extension of time claim first because an awful lot of time could be spent on this, only to find that Otis is not entitled to any liquidated damages because the relevant provision constitutes a penalty. I would suggest formulating the first issue along the following lines:

“Is Otis entitled to payment of liquidated damages and, if so, how much?”

This can then be broken into a number of sub-issues:

  • Sub-issue A. Does the contract contain liquidated damages provisions?
  • Sub-issue B. If the contract contains liquidated damages provisions, are those provisions enforceable?
  • Sub-issue C. If the contract contains enforceable liquidated damages provisions, has Otis waived its right to rely on them and/or is it estopped from relying on them and/or have the provisions been varied?
  • Sub-issue D. If the contract contains enforceable liquidated damages provisions and such provisions have not been waived, and so on, is Redding entitled to an extension of time and, if so, how long?

If the answer to sub-issue A is that the contract doesn’t contain liquidated damages provisions, then there will be no need for the adjudicator to go on and address sub-issues B to D. This may mean the adjudicator does even need to open the expert’s report on delay and Redding spent money obtaining this unnecessarily, but so be it.

Guideline 5: style

I would recommend that the adjudicator:

  • Sets out the issues in the form of questions.
  • Thinks about the potential answers to the questions that form each issue, when formulating them. If the answers don’t read well or don’t address the redress sought then the adjudicator should revisit the wording of the relevant issue.
  • Avoids contentious language in issues.
  • Asks positive questions, even if the declaration sought is negative. This avoids double negatives.

And finally…

I hope it is clear from the above guidelines that the adjudicator must give a great deal of thought to properly formulating his issues. Otherwise there’s a risk that the parties might just consider the adjudicator Mr Pitiful, even if the decision is enforceable.

MCMS Ltd Jonathan Cope

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