A lifetime of understanding is not enough to play adjudicator
Well, it finally paid off. Those interminable conferences attended on the subject, that summer's day, a year or so ago, spent in close-knit workshops, pontificating upon one's likely response to unlikely situations, that terrifying multiple choice examination on the laws (which, rumour has it, the senior partner of a well-known construction law firm, failed), and all the endless talking about it afterwards.
Yes, it finally happened. I was appointed an adjudicator. So, how was it? The appointment was by the Technology and Construction Courts Solicitors Association (TeCSA). TeCSA's list of adjudicators is not limited to construction solicitors, although most of them are. Disputing parties can have a TeCSA adjudicator, either if the contract incorporates the TeCSA rules (those are the rules which enable adjudicators to reach a commercial view of the problem if the legal rights and wrongs defeat them and limit their fees to £1000 per day) or if it is what the parties want.
Until recently, TeCSA was known only as a special interest group, run by enthusiasts, lobbying for more efficient service from the courts and taking on the construction bar in competitive go-karting and Scalextric races. Now it is required to comply with the statutory timetable for adjudicator nominating bodies (ANBs) and to secure the appointment of an adjudicator in seven days flat, while allowing it five days to make a selection, and its nominee two days to think about it. This is all very well but it does not allow much time for the usual office vagaries, of absences, postal delays and people having work to do.
TeCSA's solution to this administrative challenge is to contact several potential adjudicators by fax. The first one back with a positive response gets the job. Previous experience has taught me that responding after a morning in court, after lunch, or even after a brief chat with one's clerk about the state of one's diary for the next four weeks or so, is too late. This time, I happened to be in the post room when the fax arrived. I wrote yes on it as it came out of the machine and popped it straight back in. The next day TeCSA told me I had been appointed.
In fact, it does not really matter that there is no time to think about the dispute before accepting the job because there is not much to go on at the outset. Usually, the referring party wants some money; but you have no idea why the responding party does not want to pay it. Little can be done, therefore, until the responding party explains its position. You want it to have an opportunity to do so properly but you need it to do it quickly. I gave it seven days. In the meantime, I wondered what its response might be.
Usually, straightforward claims for payment are met with more complicated counterclaims for deductions for incomplete or sub-standard work, for the cost of remedial works or damages for delay. The extent to which these can properly be taken into account by an adjudicator has been the subject of some debate. The courts have recently held that, in most cases, a counterclaim cannot be relied on to resist the enforcement of an adjudicator's decision.
But can an adjudicator take a counterclaim into account when reaching that decision in the first place? Under the Scheme for Construction Contracts, the parties can agree to the adjudicator dealing with all disputes arising under the same contract. It seems to me that, without grappling with the distinctions between abatement, set off and counterclaim, if the reason for not paying has something to do with the value of the work done then the adjudicator not only can, but ought to, deal with it. A week later and I had not heard a peep from them.
I speculated on the explanation: they had no real reason for not paying, they had not received my letter, they had gone bust. So, taking the initiative, I went against a lifetime's understanding of the judicial role and rang them up. It turned out that they had done a deal over the weekend and no one had thought to tell me.