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Severing adjudicators’ decisions

It may have been a long time coming, but it seems the courts have finally severed an adjudicator’s decision (I’m conveniently ignoring the judgment in Geoffrey Osborne v Atkins Rail, as I don’t think that is quite the same thing).

In Working Environments v Greencoat, Akenhead J had to decide whether the adjudicator had jurisdiction to decide about two items, valued at £21,000 (plus VAT). He decided he didn’t, and so then had to consider whether the remainder of the adjudicator’s decision could still be enforced (that part was valued at £230,000 plus VAT). Akenhead J held that there was no reason why the substance of the adjudicator’s decision should not be enforced, and so he gave judgment in WE’s favour. He severed the two items valued at £21,000.

As an adjudicator, I find this judgment very interesting, not least because it suggests that the “all or nothing” approach to enforcement may no longer be the court’s approach. Unfortunately, I’m not sure that is such good news for adjudicators or the parties, since it suggests that adjudicators’ decisions will be more open to “cherry picking” by the parties.

More than one dispute?

It isn’t the first time the courts have been asked to look at severability. Generally though, the approach has been to look at whether one dispute was referred to the adjudicator. On the whole, one dispute meant no severance, more than one dispute meant there could be (although the courts have never actually done that as far as I’m aware).

In WE v Greencoat, the court was looking at individual issues before the adjudicator and whether part of the dispute had crystallised. That’s a long way from looking at the number of disputes referred to the adjudicator.

I’ve written about severing an adjudicator’s decision before:

  • In November 2009, I wrote about an adjudicator splitting his costs decision between the various issues referred to him. That came about because of Akenhead J’s judgment in Allied v Paradigm. At the time, I said that parties often asked to have split costs decisions.
  • In June 2010, I wrote about severability of an adjudicator’s decision and discussed a number of judgments, including Coulson J in Pilon v Breyer and Ramsey J in Cleveland Bridge v Whessoe-Volker Stevin. Back then I suggested that the parties could invite the adjudicator to consider the dispute on an issue-by-issue basis, or to consider issues that may be tainted by a jurisdictional challenge separately from the others. As with costs a year earlier, I said that I was being asked to split my decisions on a substantive basis.

Issue-by-issue

As an adjudicator, it isn’t difficult to prepare a decision that deals with issues individually. In fact, it may sometimes be easier, since it affords the adjudicator an opportunity to test the evidence on each issue.

Following WE v Greencoat, I suspect these requests will be on the increase and we will see more decisions set out on this basis. However, the flip side is that I also anticipate that we will see more challenges on enforcement and more picking-over of those decisions. It is arguable that this makes adjudicators’ decisions more vulnerable to challenge, but if it saves an otherwise unenforceable decision, that can’t be a bad thing.

One thought on “Severing adjudicators’ decisions

  1. Agreed. And if it severs that part of a Decision that should not have been made, that is also a good thing. In the current climate cash flow remains high on the sector’s agenda and “decisions” made without jurisdiction can have particularly significant, long-term effects. Adjudicator’s Decisions properly made with due jurisdiction should be applied as per the rules; but just because it purports to be a decision, doesn’t make it a Decision. A Decision should only flow from jursidiction. Errors of adjudicators should be no more sacrosanct and immune from challenge in this respect than the errors of other tribunals. All for it.

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