REUTERS | Alexander Demianchuk

Writing the adjudicator’s decision

The Scheme for Construction Contracts 1998 does not include any guidance for the adjudicator on how he should set out his decision, albeit it sets out lots of detail about his jurisdiction and the things he can do in the conduct of the adjudication.

The form of the decision is left very much to the individual, based on the nature of the issues in the dispute that the adjudicator is considering. For instance, some disputes may lend themselves to the parties and the adjudicator using a Scott Schedule to deal with many of the financial aspects, others may not. Even if the adjudicator uses a Scott Schedule, the summary information needs to be included in the body of the decision.

In addition, the Scheme only requires the adjudicator to give reasons, if requested by one of the parties. This may almost always happen and we have been told by the courts that brief reasons are suffice (Carillion Construction Ltd v Devonport Royal Dockyard), although again, the Scheme is silent on how they should be set out.

Why, you may wonder, am I mentioning this?

Well, I was looking at Akenhead J’s judgment in Witney v Beam Construction (and wrote about the “dispute” point last week), and like the judge, thought the extracted bits of the adjudicator’s decision looked unconventional, written in the third person in the form of a Q&A. That said, it is clear what the adjudicator means and what his views are on each sub-issue.

It got me thinking about my decisions and the format I use, and the simple guidelines that I follow:

  • Even if I am not required or requested by the parties to do so, I will generally provide brief reasons for the decision.
  • For each issue or sub-issue, I will set out the logic I applied in arriving at the decision on that issue or sub-issue. This is particularly important in a complex case.
  • I choose my language carefully, so it is clear to the parties what I’ve decided. This may also avoid a potential jurisdictional challenge down the line, on enforcement.

It may not always work, but being clear and straightforward is, I feel, helpful to the parties.

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