Earlier this year, I was reminded by those lovely people at Practical Law Construction that I’ve been blogging for them for ten years, ever since they launched in October 2008. They told me this is my 320th post, which works out at an average of 2.66 posts a month. If only I had a £1 for every word… Assuming an average of 1,000 words a post, I might not be able to retire just yet, but it sure would go some way to financing a few nice holidays!
My first post was published on 24 October 2008 and was called “How to stay on the right side of the adjudicator“. I started off by reminding everyone that adjudicators are only human (it took Rag ‘n’ Bone man another eight years to sing about this) and that post contained a lot of “don’ts” (eleven, I counted). My last post (before today), looked at the multiple contracts point (when substance and jurisdiction overlap), raised before HHJ Stephen Davies in Rawlings Consulting (UK) Ltd v Maelor Foods Ltd. It is a principle that has been around almost as long as I’ve been blogging!
Jonathan’s 10th anniversary is almost upon us too, as his first piece went live just a few weeks after mine, on 12 November 2008. He looked at the Construction Contracts Bill 2008, which soon fell by the wayside and got replaced by what eventually became known as the ever-so-easy-to-remember LDEDC Act 2011!
And in between? Well, I think we’ve covered the A-Z of adjudication and much more besides.
… and so
I was going to write an A-Z of what has happened over the last ten years, but then I realised just how hard it is and how subjective it might appear (why did you include case X and not case Y, that sort of thing). Also, whether 26 important things have happened is a moot point, and many of the things that came to mind actually fell outside my ten-year blogging window (such as Amec v Whitefriars, Macob v Morrison, Bouygues v Dahl-Jensen and Carillion v Devonport, to name just a few).
So, instead, I thought I’d highlight just a few important things from the case law that are relevant to adjudicators specifically, not adjudication more broadly. As you will see, my choices focus on being appointed and getting paid. If I was still using my A-Z theme, I would have my starting letter (A is for adjudicator), plus B (for bias) and P (for payment), with a little bit of J (for jurisdiction) on the side:
- Cofely Ltd v Bingham is an arbitration case, but it tells us a lot about the meaning of apparent bias and the amount of information adjudicators (and arbitrators) are required to disclose about other appointments (past and present) when they are approached. Parties also know they have to be careful when they complete an adjudicator nomination form, particularly if they want to exclude individuals from the nomination process (Eurocom v Siemens).
- Linnett v Halliwells LLP established that the parties are jointly and severally liable for the adjudicator’s reasonable fees and expenses, and an adjudicator can recover his fees from a party even if that party did not sign his terms and conditions (unless that party challenges jurisdiction and immediately withdraws from the adjudication). This was confirmed in Fenice v Jerram Falkus and Christopher Linnett Ltd v Harding, where the judge found there was a contract by conduct. However, following PC Harrington v Systech, we also know that an adjudicator will only get paid if their decision is enforceable (unless they’ve included appropriate wording in their appointment).
- An adjudicator’s jurisdiction is vital to the process and adjudicators have considerable latitude in how they conduct an adjudication. That said, it hasn’t stopped parties repeatedly challenging adjudicators’ decisions, alleging that the adjudicator acted without jurisdiction (and in breach of the rules of natural justice). The judgments on this topic are too numerous to mention, but one recent case (Lonsdale v Bresco) is worth including because it tells us how adjudicators must decline an appointment if the referring party is in liquidation.
- On a slightly different payment theme, the Construction Act 1996 amendments (introduced by the LDEDC 2009 in 2011) have spawned a whole raft of case law, far more than we saw prior to the amendments. ISG v Seevic is one judgment that stands out, not least because it paved the way for the smash and grab culture of the last few years. Coulson J may have tried to stop this with his last TCC judgment (in Grove Developments Ltd v S&T), but we will have to wait a while longer to find out what Sir Rupert thinks, when he hands down his Court of Appeal judgment (hopefully by the end of this term).
You may have other ideas about what is important and feel free to share those thoughts. I decided that I couldn’t end a review of this nature without including Chadwick LJ’s immortal lines from Carillion v Devonport:
“It should be only in rare circumstances that the courts will interfere with the decision of an adjudicator. The courts should give no encouragement to the approach adopted by [Devonport] in the present case; which… may, indeed, aptly be described as ‘simply scrabbling around to find some argument, however tenuous, to resist payment’…
The statutory scheme provides a means of meeting the legitimate cash-flow requirements of contractors and their subcontractors. The need to have the ‘right’ answer has been subordinated to the need to have an answer quickly.”
I wonder if this quote will still be as relevant in ten years’ time as it is today?