I found the judgment in John Sisk v Duro Felguera an interesting read, particularly the adjudicator’s use of a third party (Mr Hutchinson) to assist him in the adjudication. It made me think about how I’d have dealt with the situation, if I had been in the adjudicator’s position and had wanted to use the services of a third party. (Incidentally, it also reminded me of the “phoning a friend” case a few years ago, although the outcome then was entirely different.)
Phoning a friend (a recap) and Sisk v Duro
In Highlands and Islands Authority Ltd v Shetland Islands Council, Lord Menzies held that the adjudicator had breached the rules of natural justice by asking counsel for confirmation of a legal point. In contrast, in John Sisk, Edwards-Stuart J disagreed with Duro’s argument that the adjudicator had breached the rules of natural justice and had wrongfully delegated parts of his decision-making role to a third party.
Did the parties know what was going on?
One of the issues in both cases was the extent to which the adjudicator informed the parties about what he was doing. In Highlands and Islands Authority, the adjudicator had failed to inform the parties and had failed to invite their submissions on the informal legal advice that was received. That was his undoing and the basis of the breach of the rules of natural justice.
In John Sisk, of the second of two meetings the adjudicator held with the parties (which was to discuss quantum and involved Duro’s expert quantity surveyor), the adjudicator said:
“…As I recollect not everyone who attended my meeting on 3 September 2015 arrived at the same time… Mr Hutchinson was already in the room and naturally I introduced him to each attendee as they arrived. I cannot recall with any certainty if I stated his role at that time or at the commencement of the meeting, however I did advise the parties of his presence and what he was tasked with doing on my behalf at the meeting.”
The adjudicator also explained that Mr Hutchinson had:
“…carried out research for me by trawling through the various submissions made by the parties and compiling them into like items such that I could consider them as a whole and in additional (sic) to this he assisted with administrative tasks such as checking my calculations and proofing the documents produced in support of my Decision.”
The court found there was no evidence to support the allegation that Mr Hutchinson had taken any “material decision or valuation”, nor that he was anything more than a “data handler and manipulator and a general administrative assistant”.
Meeting the parties
While the judgment goes into some detail about what the adjudicator and Mr Hutchinson did (or didn’t) do, I wonder if the outcome would have changed if the matter had been handled differently from the outset. Certainly, the focus of the enforcement proceedings would have changed, although Duro did not explain to the court why it took it “nearly two months after the meeting” to raise any comment on Mr Hutchinson’s involvement.
When I hold meetings with the parties, I like to ensure that there is an agenda and that the parties understand the purpose of the meeting. If you don’t have this, then the meeting can get out of hand and be of limited use. Also, if the parties understand why there is to be a meeting, they can also decide who should attend and what sort of submissions they may wish to make during the meeting.
The format and formality of any given meeting will depend on the facts of the case. Some disputes lend themselves to a meeting being more akin to a hearing, others are more informal “chats” around a table. Sometimes you just want to talk through the issues and look at the areas of disagreement with the parties’ experts, other times you may want to hear legal argument or have the parties elaborate on aspects of their submissions.
Regardless of how you deal with a meeting, one thing is clear. It is better to explain in advance who should be at the meeting, and this doesn’t apply just to the parties. It also applies to the adjudicator and anyone he wishes to bring along to the meeting.
Use of a third party
Save for secretarial support, I do not recall having the need to use someone else to be a “data handler and manipulator and a general administrative assistant” of the type the adjudicator used in this case. However, we all know the timescales in adjudication are short and that some parties like to provide the adjudicator with a lot of material (for example, in John Sisk, the adjudicator was provided with some 20 lever arch files of information). Edwards-Stuart J suggested that, in those circumstances, the adjudicator’s task “would have been almost insuperable” without Mr Hutchinson’s help.
In my view, if an adjudicator is going to use an administrative assistant of the type use in John Sisk, then the parties should be advised of this in advance. Indeed, I know of some adjudicators who will include a provision allowing this in their terms. If there isn’t such a term then I consider the parties should be advised in writing in advance.
One thing that isn’t clear to me is why the adjudicator did not charge the parties for the time that Mr Hutchinson spent. Rather he treated them as “part of his overheads so that they were covered by the Adjudicator’s own fees”. Again, irrespective of whether the cost of the assistant is absorbed within the adjudicator’s hourly rate, charged separately or not charged at all, I still consider it appropriate for the parties to be advised of the fact that an assistant is being used and that the role of the assistant is explained to them. This is especially so if the assistant is likely to be present at a meeting and/or communicating with the parties.
I can’t help thinking that, had the parties been advised of Mr Hutchinson’s role in writing and in advance of the meeting, the line of argument Duro adopted may have not been open to it.