It is probably fair to say that adjudication favours the referring party. After all, the referring party can spend as much (or as little) time as it wants preparing its claim, collating evidence, proofing witnesses and getting its expert evidence in place. On the other hand, the responding party is up against the clock from the moment it receives the notice of adjudication. I’d say there is a world of difference between knowing a claim may result in a notice of adjudication, and actually having to respond to one when it lands on your desk. Anyone having experienced this will know just how quickly the clock hands go around, once it starts ticking.
This definitely gives the referring party the edge, but it doesn’t mean the referring party always gets its own way. I’m not sure if there are statistics available indicating how often referring parties are successful in adjudication, or how easy it would be to measure success in that sense. However, the perception certainly exists and sometimes it is reinforced by what you read in judgments. Take the words of HHJ Waksman QC in Lanes v Galliford Try. The Court of Appeal may have subsequently overturned his judgment, but it should still make adjudicators stop and think before they serve a preliminary views document, especially if they have only seen the referring party’s case. Jackson LJ may have held there wasn’t bias in doing so, but I’m sure many others would disagree.
When the responding party doesn’t respond
But what happens if the adjudicator only sees the referring party’s case because, for whatever reason, the responding party does not serve a response?
Adjudication is subject to the same test as any other civil matter: the referring party has to prove its case on the balance of probability. Generally, the referral puts the referring party’s case (ideally in a neat and orderly way), the response rebuts that case and may also put forward an alternative case by way of defence. Without a response, the adjudicator is left with just one party’s evidence and version of events to consider and rule upon. It should come as no surprise if the referring party is 100% successful in those circumstances.
But is it so straightforward?
Some may argue that even when the responding party fails to respond, the adjudicator should not just look at the referring party’s prima facie case. Instead, they will point to the fact that the adjudicator has a duty to probe deeper, to carry out his role in an inquisitorial manner by taking the initiative that both the Construction Act 1996 and the Scheme for Construction Contracts 1998 envisage. They would say that just because adjudication is temporarily binding does not mean the adjudicator has less of a duty to test the case before him. That may be so, although taking the initiative would come at a price, which the parties may be unwilling to pay (especially the responding party who isn’t taking part anyway).
Would the outcome be different if the responding party played ball?
It is possible, but it’s very difficult to say with any certainty. Even if, in an uncontested adjudication, the referring party was 100% successful, how could the adjudicator know if the outcome would be different if the responding party had defended that claim. How could the adjudicator know what evidence should have been put before him? It is very different looking at something with the benefit of hindsight, and without the time pressures present in adjudication. For example, in Lanes v Galliford Try, the adjudicator’s decision did not differ significantly from his preliminary views document and that decision was, ultimately, enforced by the Court of Appeal.