I read the recent judgment in Balfour Beatty v Shepherd and some of the issues the adjudicator faced struck a chord.
Requesting a document as an adjudicator
Occasionally, I too find myself asking for a copy of a document to be provided to me. However, if a party has not provided adequate documentation to support its case, then it’s not usually my place to ask for it. That said, usually, my request is uncontroversial (for example, a copy of an instruction, a minute of a meeting or a payment certificate).
If a party doesn’t give me a document I ask for, I don’t usually go down the formal route of stating that this may lead me to draw an “adverse inference”, as the adjudicator did in Balfour Beatty v Shepherd. I normally record my request (and the fact that it wasn’t met) and ask the party refusing access to explain why. I record any explanation too. If the fact that I had not received a document (or, for example, not been able to ask a person a particular question) was relevant to an issue in dispute, then I record the problem just before a finding in my decision: I aim to make the link between the party’s refusal and my decision as clear as possible.
What about specific inter-parties requests?
I am sometimes asked to “order” disclosure of a particular document by one party, who wants access to something the other party has. If I am persuaded that the request should be put to the other party, I usually ask the other party to respond. They may produce the document in question, or they may give reasons why they are not happy to share it with me and their opponent. If I feel they should provide it, then what follows would be similar to a request for a document I had initiated myself.
CPR as guidance
I am conscious that the CPR do not apply to adjudication. For example, there is no formal rule about disclosure in adjudication and no formal rule about the terms of experts’ appointments. However, provided you stick to what is achievable in the timescale of an adjudication, the CPR can provide guidance. Adjudicators are clearly nowadays expected to deal as fully as possible with the dispute before them, subject to pressures of time.
For example, I have just had a request for instructions to counsel to be disclosed, whereas the other side claimed privilege. I refused the request for instructions to be disclosed on the basis that the instructions were actually set out in counsel’s advice, which had been included in the documents submitted in the adjudication. However, there are similar documents I would have asked for, especially in the case of an expert who had not appended his instructions to his report.
Privilege and disclosure: a (sometimes) unnecessary distraction?
While I don’t mind dealing with arguments about privilege and disclosure, it can be an unnecessary distraction. That said, there was nothing in Balfour Beatty v Shepherd that came as a surprise to me, with the TCC underlining that an adjudicator does have a considerable discretion in that way he treats a request for a document, just as he does when ascertaining other aspects of the facts and the law before him.