Ann Minogue’s article Can we be of any assistance? (Building, 21 January 2011) asked whether there is a role for lawyers in the adjudication process. She wondered whether it is time to “review the industry’s original ‘no lawyer’ position, which [she] previously supported”.
Ann’s article suggests that in the run up to the Construction Act 1996 coming into force and during drafting of the Scheme for Construction Contracts 1998, there was “much discussion” about prohibiting parties from being legally represented in the adjudication process. I don’t really remember that. I wasn’t really involved in dispute resolution back then, I was still quantity-surveying full time.
Apparently, those taking part in the discussions about the Scheme thought it wasn’t practicable to outlaw lawyers in the adjudication process. I can see why they thought that. It is hard to imagine how one would police such a rule. Certainly I can see how lawyers could be prevented from attending a hearing with the adjudicator (if he called one), but beyond that, it is hard to see how it could work. For example, would the adjudicator be given jurisdiction to rule out submissions if they looked too lawyerish? What exactly would that term encompass?
Ann’s article refers to comments from Paul Letman who, in turn, argued (in a recent Tecbar review) that lawyers should be involved in the adjudication process. He gives a number of reasons for this, not least to prevent adjudicators making mistakes on the law, especially when their jurisdiction is involved. The risk here is that the parties have an unenforceable decision.
All of this got me thinking about adjudications I have been involved in, especially when I’m sitting as the adjudicator.
Should the adjudicator be legally qualified?
I think some basic legal training and knowledge is essential, but I would not go so far as to suggest that all adjudicators should be legally qualified. The person best able to deal with a dispute will depend on the facts of that dispute. An engineer to look at an engineering dispute, an architect to look at design, a quantity surveyor to look at quantum and so on. It may not be a perfect system, but it works most of the time. Interestingly, Mr Letman referred to a case where a qualified solicitor acting as the adjudicator erred in some way. Fancy that, fancy a lawyer making a mistake!
Should I take legal advice?
If the adjudication is under the Scheme (and I’d say about half of the adjudications I deal with are), then I have extensive powers to control proceedings, including obtaining legal advice if I need it (paragraph 13 of the Scheme). Apparently Mr Letman suggests that non-legally qualified adjudicators should use this power, but notes the power is under-utilised.
I am legally qualified, so perhaps I fall outside of Mr Letman’s gaze. Indeed I haven’t had the need to seek legal advice that often myself (most recently I sought legal advice on a specialist insolvency point as it was more cost effective for me to do so), but know others that do more regularly. So I would agree with Mr Letman that it can be useful. Often the issue for the adjudicator is really about deciding over the legal submissions before him rather than having an in-depth understanding of each TCC judgment and nuance of the case law.
Do legal advisers help or hinder the process?
To be frank, I don’t really think there is a definitive answer to this. The quality of representative varies. Some are good, some not so good. This applies equally across the board, whether it is the contracts manager, a director, lawyer or claims consultant that is representing the parties.
In my view, what is more important is that the parties set out their positions clearly in their submissions. The choice of language and whether it is “dressed-up” in legal jargon is of less importance. What matters is that the adjudicator can understand the issues in dispute and make a decision based on the facts before him.