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What to reasonably expect from your adjudicator’s decision

Part 1: hey good looking

It’s a real shame that the adjudication guidance produced by the Construction Umbrella Bodies Adjudication Task Group (CUBATG) has never been updated, as it really is very good. Unfortunately, it is now extremely out of date. There are also some excellent adjudication guidance notes produced by the likes of the RICS and the Adjudication Society but, like the CUBATG guidance, these guides don’t go into decision writing in any great detail. Nor does the Construction Act 1996 make any reference to what form a decision should take.

That got me thinking about how contentious construction lawyers are expected to know what they should be getting from an adjudicator’s decision.

While there isn’t a great deal written about decision writing, it’s obviously a critical part of the adjudication process, so I thought I would look at this subject, starting with some basic, but all too often forgotten, guidelines on how an adjudicator should go about producing a good looking and professional decision.

While the substance of the decision is obviously of utmost importance, a poorly presented decision can reflect badly on the adjudicator. We’ve all read newspapers and reflected that an article might appear slap-dash as a result of typos. The same applies to adjudicators’ decisions.

The adjudicator’s objective should be to communicate his findings to the parties clearly and in a form that is enforceable by the court, if necessary. How does he go about doing this?

Guideline 1: plan ahead

By planning ahead and reaching conclusions before committing them to paper, the adjudicator should ensure that the decision doesn’t become too long and unwieldy, albeit I acknowledge that conclusions can sometimes change while the decision is being written.

While there is limited time available in an adjudication, as we all know, this can sometimes make documents longer than necessary, as French mathematician and philosopher Blaise Pascal identified:

“Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte.”

Which roughly translates to mean:

“I have made this letter longer than usual because I lack the time to make it shorter.”

I know that I’ve used this quote in a previous blog, but it’s such a relevant point I thought it was worth mentioning again.

Guideline 2: control sentence and paragraph length and write concisely

The adjudicator should try to:

  • Keep sentences to 20-25 words, 50 as an absolute maximum.
  • Vary the sentence length.
  • Use short sentences for effect.
  • Omit unnecessary words.
  • Structure paragraphs.

Guideline 3: avoid ambiguity

The adjudicator should avoid ambiguity by punctuating accurately. There is no excuse for poor punctuation (see Eats, Shoots & Leaves by Lynne Truss).

Guideline 4: use simple words

The adjudicator should:

  • Consider the readers. As readers may well be lay parties, legal jargon, technical acronym, and so on should be avoided where possible.
  • Avoid “judgitis”. Judgitis is a common disease of the mind that occurs in some dispute resolvers and results in them changing their style to attempt to sound like a judge. The adjudicator should not attempt to adopt such unnecessary and overly legalistic language in his decision.
  • Avoid using Latin. I acknowledge that it’s sometimes not possible to avoid using Latin, for example when referring to some of the rules of construction such as the contra proferentum rule. However, in the vast majority of other instances Latin can, and should be avoided. For example, why use “inter alia” when “among other things” will do?

Guideline 5: ensure documents are professional

The adjudicator should:

  • Beware of automatic spell checks and autocorrect. For example, on more than one occasion when writing about mechanical and electrical disputes, I’ve found that autocorrect has changed “luminaires” to “luminaries”.
  • Format his decision. It amazes me how many formatting mistakes are included in pleadings and decisions. The adjudicator should have a grasp of simple features in Word such as “keep with next” for titles in order to ensure that the decision looks professional. I appreciate that many adjudicators are of an age that they grew up without computers (including me, unless the legendary ZX Spectrum 48K counts), but this is simply no excuse.
  • Include a contents page. This is more a preference than a necessity, but personally I think it can help the parties understand the structure of a decision at a glance.
  • Bind the decision. I’m not suggesting a leather-bound tome, but the use of binders (or similar) helps to ensure the decision looks professional.

Guideline 6: check everything

The adjudicator should:

  • Read from the hard copy. I’m a firm believer that more errors can be identified by reading from a hard copy, than on a computer screen.
  • Take breaks from proofing. I think 30 to 40 minutes is about the maximum that should be attempted without a break of some sort.
  • Ask a colleague to proof for typographical errors and so on.
  • Check everything again. Once proofed and corrected, there is no harm in a final read through.

My next instalment on decision writing will be on issue identification. I bet you can’t wait!

MCMS Ltd Jonathan Cope

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