Challenging an adjudicator's decision may be a long process
It seems that adjudication is finally taking off. The RICS is currently appointing eight adjudicators a week; other sources suggest three a day. Even the association for construction solicitors, TecSA, is appointing adjudicators from its multi-disciplinary list which includes, heaven forbid, lawyers. But, surprise, surprise, not everyone is thrilled to bits with the adjudication process or its results.
Although only two disputed decisions have reached the courts, I gather there are many more in the pipeline. So far, the courts have been right behind the adjudicators, supporting their decisions and even giving judgment in favour of the victorious party in double-quick time. Against this background then, what hope is there for the unhappy loser who dares to suggest that the 28-day decision man got it wrong?
Pausing here, it is worth bearing the following in mind:
the Macob case was the only one in which arguments as to the validity of the adju-dicator's decision were raised. Outwing ended up in court only because the contractor did not pay up in time.
the contractor in the Macob case did not have much material with which to challenge the decision and was forced back on the old chestnut of whether not being allowed to have your say amounts to a breach of the rules of natural justice. As the judge pointed out, the time limits for adjudication are so tight that they are likely to result in injustice, but Parliament must have known that. In any event, he formed the strong provisional view that challenge was hopeless.
furthermore, the contractor was hoist by its own petard. It said that the decision was a nullity but still thought that it was sufficiently valid for it to be referred to arbitration.
whatever the story so far, two swallows do not make a summer.
It is clear, however, that the courts are unlikely to consider challenges to an adjudicator's decision on the merits alone. If one party disputes the adjudicator's interpretation of the contract, or valuation of the work, or whatever, they will be stuck with it until it is reconsidered in court or arbitration at a later date. If a decision is to be overturned it will have to be on the basis that it was invalid for some reason or another. So what sort of thing should we be looking out for?
A decision may be rendered invalid if, for example, the contract was not one to which the HGCR Act applied, if the adjudicator dealt with a dispute which was not referred to him, or if he were improperly appoint- ed. With 16 adjudicator-nominating bodies (ANBs) operating (very quickly) a variety of contractual routes to appointment, it is inevitable that there will be teething problems. Some of the standard forms allow the parties to select an ANB by multiple choice with an ultimate default option.
What if there is confusion as to which ANB has been agreed? This is, of course no idle matter since the ANB may define the disciple of the adjudicator. Furthermore, it is not clear whether the adjudicator is to be appointed by the president of, for example, the RIBA, as arbitrators are, or whether they can be nominated by a more lowly officer.
The time scales for appointment, acceptance and decision are very strict. If they are not observed and the '28-day decision' is given on day 29 is it still valid? Until these points are considered by the courts, no clear answers are available. For present purposes, however, if you want to challenge an adjudicator's decision, do nothing until steps are taken to enforce it in court and then put your thinking cap on.