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What to reasonably expect from your adjudicator’s decision (part 3)

Deciding the dispute

Earlier this year, I wrote about the proposed Hong Kong Security of Payment Legislation.

Recently I have been fortunate enough to travel to this vibrant city to talk to some budding adjudicators about decision writing. Part of my workshop was about the process that an adjudicator might follow in reaching his decision. I thought this topic might be suitable for the third and final part of my series of blogs on what you can reasonably expect from your adjudicator’s decision.

How to decide?

Let’s assume that your adjudicator has identified the relevant issues and sub-issues as per my previous blog. How does he go about deciding those issues and, ultimately, establishing whether or not to grant the relief sought?

Before the adjudicator embarks on deciding the dispute, I would suggest that he should first identify which parts of the submissions and evidence are relevant to each issue and sub-issue. I find that the most helpful way to do this is to create a table recording the individual paragraphs of each submission that are relevant to each issue and sub-issue.

Next, I would suggest that the adjudicator should:

  • Establish common ground. Obviously the adjudicator doesn’t need to decide what is common ground, but it is helpful to establish the matters on which the parties agree. The best representatives, who are confident in their cases, will happily agree what is common ground, rather than disputing absolutely everything regardless of the merits of their submissions.
  • Decide the relevant facts and law, and then (normally) apply the law to the facts. I say “normally” because sometimes it is more appropriate to decide the law first. For example, the referring party might have submitted a complex extension of time claim, and one of the defences is a failure to comply with a condition precedent. If there is an argument about the law relating to condition precedents then it would be sensible to deal with this first. This is because, if the contractor has failed to comply with a valid condition precedent, it might not be entitled to an extension of time regardless of whether it has incurred critical delay as a result of employer risk events. There is little point in spending time deciding the parties’ factual dispute regarding the merits of the claim, only then to find that there is no entitlement.
  • Remember that it is only the process that has to be fair. While the process has to be fair, the adjudicator’s findings on the substantive dispute do not have to be fair. What is fair is subjective, and trying to achieve a fair result is likely to lead to uncertainty. The parties have entered into a contract and allocated the risk between them. Any attempt to ignore this by producing a fair result could be completely contrary to the correct interpretation of the contract or relevant law.
  • Only now put pen to paper (or more likely fingers to keyboard). I would suggest that the adjudicator works out his findings and notes down brief reasons before starting to write-up each issue. It should produce a more focused decision, as opposed to appearing to have adopted the attitude of “why say it in 10 words when 50 will do”. However, the adjudicator must realise that his decision might change while he is writing-up his findings and reasons. All decision-makers acknowledge that this happens to them with some frequency. In these circumstances the adjudicator should go back to the drawing-board, rather than trying to persevere with a finding that he has realised is obviously wrong. The adjudicator can and should change his mind.
  • Briefly summarise the relevant parts of the parties’ cases. I know that some adjudicators like to copy and paste large swaths of the parties’ submissions. In my view, it is better for the adjudicator to briefly summarise the relevant parts of the submissions. That way the adjudicator demonstrates that he has understood the parties’ cases. Excessive copying and pasting simply demonstrates that the adjudicator has mastered the basic functions of Microsoft Word.
  • Set out findings and reasons in the body of the decision, use schedules as appropriate. The adjudicator should clearly set out his findings and reasons in the body of his decision. In certain circumstances, the adjudicator may want to use schedules, spreadsheets or tables to set out his findings on disputed items such as variations or defects. These schedules will form part of, and should be attached to, the decision.

Now let’s consider some of these points in more detail.

Deciding the facts and the law

In deciding issues of fact the adjudicator needs to determine which of the parties’ submissions he prefers. While this sounds simple, there are some important points to bear in mind:

  • Burden and standard of proof. The adjudicator should bear in mind which party has the burden of proof when it comes to demonstrating certain facts, and also that the standard of proof is on the balance of probabilities. However, adjudicators should remember that they need to adequately reason their decision. Stating “the referring party has failed to discharge its burden of proof and therefore its claim fails” is not a reason. The adjudicator needs to explain why he prefers one of the parties’ contentions over another. For an interesting analysis of the very limited circumstances in which a decision-maker can rely solely on a failure to satisfy a burden of proof, I suggest looking at Stephens v Cannon [2005] EWCA Civ 222.
  • Weight of evidence. The adjudicator must decide the weight to give to particular pieces of evidence. Don’t be surprised if he gives more weight to contemporaneous evidence, which was produced on or around the time that events happened, and is less likely to be distorted by time. Also, we all know that our memory is not always as reliable as we would like to think (see Matt’s blog on this topic). If contemporaneous evidence is consistent with other evidence in support of a proposition, this is likely to add to the weight it is given.

The adjudicator also needs to ascertain the parties’ contractual rights and obligations by deciding what law applies and how it affects the parties. The adjudicator should go about this on the basis of the law the parties have referred him to. He should not introduce new legal issues without first giving the parties the opportunity to make submissions on it.

Reasons

One of the most common complaints against adjudicators is that they have failed to provide adequate or intelligible reasons, so it is vital that the adjudicator gets this right. Clear reasons will ensure parties understand why they have won or lost a particular issue. It may also help them to resolve the dispute. The parties might well be arguing about other matters outside of the decision, and understanding the adjudicator’s thought process on particular points might help them to resolve these other matters.

The style of the reasons is a matter of personal preference. I personally like to set out my finding followed by my reasons in individual sub-paragraphs below. However, I know that many adjudicators like to set out their reasons in long flowing paragraphs, and that can be equally as effective provided the reasons are clearly identifiable.

Conclusion

I have to say I have thoroughly enjoyed writing this series of blogs, because sometimes it’s no bad thing for any professional to step outside of the box and analyse what they do. I also thoroughly enjoyed teaching decision writing in Hong Kong, but that was greatly helped by the aptitude of the prospective adjudicators. With the diverse range of their backgrounds and professions, as well as their enthusiasm for the process, I have no doubt that they can help to make adjudication in Hong Kong equally as successful as it has been here in the UK.

MCMS Ltd Jonathan Cope

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