A QUESTION OF TIME
Adjudication is a speedy process intended to provide some sort of an answer, on an interim basis, until such time as either party has the inclination or resources to obtain a more considered answer from the court, writes Kim Franklin.
But this distinction between a swift adjudication and more leisurely court proceedings does not apply to the respective parties at the same time, in the same way.
An adjudication claimant has all the time in the world in which to put together their claim. The 28-day timetable does not apply to them.
The respondent, whether unsuspecting or only too aware that a claim is brewing in the wings, cannot begin to prepare a defence until the referral notice lands on the mat.
They then have no time at all in which to do all that needs to be done to defend the claim - instructing experts, obtaining reports, mastering the documents and drafting like crazy.
The parties then hold their breath for the impossibly short time in which the adjudicator is required to reach and publish a decision. And then what?
The losing party is required to pay up, come what may.
Construction professionals may feel particularly aggrieved that they have been found negligent on untested evidence.
They may want to apply to the court without delay for a declaration that the adjudicator got it all wrong.
'Not so fast, ' the claimant cries. 'You can't rush into court proceedings. There are protocols to follow, meetings to be held, alternatives to be considered.'
So what is the answer?
Are the 'have-a-go' claimants entitled to boost their cash ow in 28 days, while the dissatisfied respondents must wait months before they can begin to put the record straight?
It is clear that, save in exceptional circumstances, the court will not stay the enforcement of an adjudicator's decision. Most recently, in Hillview Industrial Developments v Botes Building (Judgment 07.06.06), the defendant contractor argued in vain to avoid paying up on an adjudicator's decision in favour of the claimant developer because the contractor had started its own proceedings for undisputed sums due on its final account.
It would be 'curious, ' the contractor said, if it had to pay the developer promptly, only for a substantial sum to be repaid shortly afterwards. But the court would have none of it.
Unless it could show that the money would disappear without trace, the contractor should pay up.
There is a glimmer of hope for those disadvantaged by adjudication. Not every claimant is required to go through the protocol hoops before starting proceedings.
The TCC court guide expressly recognises that claims which raise the same issues as a recent adjudication are exempt. There is nothing, therefore, to stop a defendant proceeding straight to court to clear their name.
The beneficiary of the adjudication may want to buy more time before incurring the costs of litigation, but time is an illusion and in adjudication matters, doubly so.
Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers, London. Visit www.crownofficechambers. com