This issue came up over lunch recently. It got me thinking about whether I would like to see my decisions made public or whether I prefer the current position whereby they remain private between the parties and only get an airing in public if there is an issue on enforcement. Even then, the decision is not put into the public domain, rather bits and pieces are shared by the judge in the judgment, along with the adjudicator’s main findings.
Should we publish decisions?
When people talk about the pros and cons of publishing adjudicators’ decisions, they often refer to what happens down under, particularly in states like Queensland, where all adjudication decisions are published. However, I believe that adjudication scheme is somewhat different to the UK schemes, and is limited to disputed payment claims. The parties are also required to go to an adjudicator nominating authority (ANBs here) for an appointment; they can’t choose the individual who will act as the adjudicator.
It’s all swings and roundabouts
On the one hand, I can see some benefits in making adjudicators’ decisions public.
- It could help to increase the quality of a decision if the adjudicator knows his decision will be seen by more than just the parties. The possibility of appearing before the TCC in enforcement proceedings hasn’t really had this impact, but a more public database might.
- Similarly, making a decision public may enable the ANBs to monitor adjudicators’ performance and push up standards. At the moment, unless a party complains to an ANB about an adjudicator’s performance, the ANB has no easy way of monitoring its listed members.
- A database of decisions would provide examples for future adjudicators and could aid training.
What about the downside?
Equally, I believe there are some drawbacks to publishing adjudicators’ decisions:
- For one thing, it could lead to forum shopping. If a particular adjudicator is known to have a particular view on a point like global claims or concurrent delay, parties may actively seek to appoint or avoid that individual, depending on the nature of their dispute. To some extent, it is arguable this happens anyway. We all know legally trained adjudicators get appointed when legal issues are in dispute, QS’ when its more about the numbers, architects when it’s about design etc. Parties may even plan for this, when they list several possible adjudicators in their contract, or advise an ANB that they want/don’t want X to be appointed.
- By publishing, you create a database that is effectively a precedent bank for future decisions. However, can a point decided by an adjudicator be a precedent in an environment where a decision only has temporary finality? Even if it could, what would happen if that decision was relied on, only for the parties to have their dispute resolved by the court and what the adjudicator decided is overturned?
- There is also the issue of confidentiality in adjudication proceedings (which Jonathan discussed recently). Regardless of your views on that subject, making decisions public could have significant repercussions and may even push parties away from adjudication to arbitration, which is confidential.
On this issue, I think I’ll stay on the see-saw for now!