Choosing an adjudicator can be as painful as the dispute itself
When the zany act of adjudication first burst upon the construction stage, performing for the industry its ground-breaking 28-day, one-act play, the audience, a combination of punters, pundits and plaudits, gave it a mixed reception. Some, sitting in the industry stalls, greeted its antics warmly, seeing adjudication as welcome relief in the otherwise rather turgid cycle of dispute-resolution operas. Others, those looking down from the lawyers' balcony, watched its early performances warily, muttering darkly that it would, like as not, be a one-hit wonder.
Most seemed to agree, however, that adjudication should not be allowed to scamper about unrestrained. Improvisation is all very well but at least there should be a programme to enable the participants to know what they were in for.
Suitably justified, the Adjudicator Nominating Bodies (anbs) set about producing rules for the conduct of adjudications. Not one collaborative set of rules for use at all adjudications - where's the fun in that? Instead various anbs each produced their own.
Unless the parties agreed to something as good, or better, the government's 'Scheme for Construction Contracts' applied. Rising to the challenge, the Construction Industry Council produced a Model Arbitration Procedure (map) as part of its guidance on the right to adjudication. The Centre for Dispute Resolution (cedr), well known promoter of mediation, followed suit, introducing scale charges for adjudicators and, not surprisingly, a mediation option.
Adjudication rules were also produced by the ice and the Technology and Construction Courts Solicitors Association (tecsa). tecsa's rules, revealing the perspicacity of its legal draughtsmen, tackled head-on some anticipated problems with the adjudication process. They enabled adjudicators to rule on their own jurisdiction and told them that if ascertaining the parties' legal entitlements was just too boring, they could reach a 'fair and commercially reasonable view of how the matter should lie'. Importantly, each of the Adjudicator Nominating Bodies maintained its own list of adjudicators.
The parties' choice of Adjudication Rules, therefore, not only affected the conduct of the adjudication but also determined the discipline of the person behind the mask, be they architect, surveyor or, heaven forbid, lawyer.
Their task complete, the anbs sat back and waited for the performance to begin, quietly confident that at least there would be no more rules. They had reckoned without the barristers. Here at the bar, the demands of our calling are such that we have little enough time to manage our own affairs. Nevertheless, the tcc Barristers Association (tecbar) has recently launched the tecbar Adjudication Rules. A latecomer to the piece, the tecbar rules have built upon the growing body of adjudication case law and have picked out some of the bugs discovered in the process to date.
Challenges to the jurisdiction of adjudicators have provided the most fertile ground for avoiding their decisions. The tecbar rules therefore enable adjudicators to rule upon their own jurisdiction and also allow them to rule upon any other matter relevant to the dispute, irrespective of whether it has been referred to them. Adjudicators' powers to order one party to pay the other's costs were the subject of the much-criticised court decision in John Cothcliff v Allenbuild. tecbar expects each party to pay its own costs unless the parties agree otherwise.
The method by which adjudicators' decisions may be enforced has also been debated in the courts. The tecbar rules provide for the decision to be fully enforceable, by injunction if necessary. Whether an adjudicator can order a payment to a stakeholder has been a moot point, going as it does against the grain of the Latham reforms. The tecbar rules spell out the adjudicator's powers, including payment to a stakeholder.
tecbar will appoint adjudicators from its list of members on a scale fee ranging from £50 to £350 per hour. Let there be no doubt that, if you go the tecbar route, underneath the mufti of the adjudicator you will find - a barrister.