When resolution of a dispute becomes a part of the problem
If you're faced with tight deadlines and too much work, delegation is often an attractive option.
But if you do delegate, it is vital that you check that any contract provides for delegation, on what terms and to what extent. The same can apply to dispute resolvers, particularly those working as adjudicators, who are often required to deal with a lot of issues in a short time. It may be of some comfort to realise that factual disputes about who agreed what can resonate through all levels of a dispute - those working at the 'dispute' level rather than the 'coalface' level may be just as susceptible to being dragged into a dispute. Rather like peeling away the layers of an onion, the court will simply keep going until it reaches the layer where the answer lies.
A recent illustration came in the case of Try Construction v Eton Town House Group, which involved a dispute concerning extensions of time.
Try said it was entitled to extensions of time and the matter was referred to an adjudicator. The adjudicator was not only faced with the usual tight timetable but also with an impending holiday. He told the parties he wanted to call on the assistance of a programming expert and an agreement was reached between the parties and the adjudicator. The programmer did his stuff and the adjudicator arrived at a decision, finding that Try was entitled to an extension of time, from which flowed loss and expense and a right to have liquidated damages repaid. Try applied to the court for summary judgment on that decision.
Summary judgment is the usual vehicle for enforcing adjudicators' decisions, the court generally being in a position to decide whether any jurisdiction arguments raised by the defendant have a chance of thwarting enforcement. But in this case Eton House called into question what the parties had agreed about the adjudicator's reliance on the programming expert. The judge concluded that a summary process was not appropriate - evidence was needed. So the matter went off to another judge so that the facts could be investigated. The participants found themselves embroiled in giving evidence about what they had, or had not, agreed.
The adjudicator decided that the parties had agreed to his obtaining the technical assistance of a programming expert, who - if necessary and in order to establish what caused late completion - was empowered to go beyond the strict confines of the arguments put forward by the parties. Eton House disputed that the agreement had gone that far. It said it had not agreed to effectively hand over the analysis and decision-making on the extension of time to someone other than the adjudicator. That, Eton House said, amounted to the adjudicator using his own analytical methods, which it had had no opportunity to comment on. This, in turn, amounted to a breach of natural justice that rendered the adjudicator's decision unenforcable.
Try's witnesses, who had participated in the adjudication, gave evidence that the agreement reached between the parties and the adjudicator accorded with the adjudicator's record. Eton House's representative disagreed. The judgment sets out extracts of his cross-examination, graphically illustrating the extent to which it is possible for an apparently detached representative to become part of the dispute. The judge preferred the evidence of Try's witnesses, apparently fortified in his conclusions by Eton House's failure to raise the point of the scope of the programmer's involvement until after the adjudicator's decision went against it. The judge also concluded that there had been no breach of natural justice, all the questions the programmer asked of the parties having related to information exchanged between them. So the parties knew about the information the programmer used and had agreed to the adjudicator relying on the programmer's conclusions. The judge even applauded the process the parties had agreed to as being transparent and pragmatic.
That representatives can become involved in the substance of disputes reminds us that in any negotiation or agreement on resolving a dispute, it's possible that another layer of binding agreement comes into existence.Once a dispute has arisen, whatever steps towards its resolution are being taken, tread warily, or the resolution may itself become part of the problem.