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EXPERT ADVICE

LAW

Hitherto, the voice of dissent has rehearsed familiar themes, writes Kim Franklin.

Adjudication was intended to provide rough and ready justice, quickly and cheaply during the construction process, lancing the boil of a dispute pro tem and leaving the parties to arbitrate or litigate at their leisure when the dust had settled. Whatever the merits of the original idea, eight years down the line it has not quite worked out that way.

Adjudication may be rough and ready. But whether or not it is justice depends on your standpoint. Even viewed objectively, the plethora of cases in which the courts have unpicked adjudicators' decisions for breach of natural justice suggests that justice is not always seen to be done or, in some cases, done at all.

Adjudication is not necessarily quick; in fact many adjudicators allow the parties as long as they like to exchange layer after layer of submissions, building up like a compost heap from which the adjudicator is expected to extract good, organic reasoning.

And the cost? Not only is adjudication protracted and formless, but the need to produce detailed information to short order is also good news for those who generate their fee income by doing just that.

Startling sums of money are spent on adjudication and they are irrecoverable - win or lose.

For some unexplained reason, the legislators allowed adjudication 'at any time', permitting large, complex disputes to be referred to adjudication long after project completion. This enables referring parties to devote considerable resources to their cause, bombarding the adjudicator with voluminous documentation.

All this time and money is spent on a procedure with an uncertain outcome, which may then be challenged or overturned in court or arbitration. Why not cut out the middlemen, say the dissenters, and go straight to a final and binding tribunal?

Now a new voice has been added to the growing chorus of dissent enhancing the well-worn theme: that of the expert. It is not unusual for experts' reports to be used in adjudication. Delay claims are increasingly supported by critical paths or other network analyses. Claims against professionals ought, if the law is properly applied, to be supported by the opinion of a similarly qualified professional.

No architect should be judged negligent on anything other than another architect's say so.

Yet what is the status of that expert evidence in adjudication?

Without comparable expertise, and remember most adjudicators are quantity surveyors, the adjudicator cannot say whether the expert is right, wrong or plain deluded.

Court procedure imposes strict duties on an expert - their opinion is tested in meetings with their opponents and then by cross examination.

There are no rules for experts in adjudication and no time. If the process is extended to allow for experts' meetings or a hearing, you end up with a semi-formal procedure without the teeth of the real thing. So, say some experts, adjudication is no place for expert evidence. If your case requires it, better take it to litigation or arbitration.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London.

Visit www. crownofficechambers. com

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