Complaints series - Complaint No.18 – the passive adjudicator

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Complaints series - Complaint No.18 – the passive adjudicator

March, 2013
JR Hartley

A recent complaint I came to hear about concerned the question of whether the adjudicator should have taken a more active role in calling a halt to and/or limiting the number of submissions one party makes. The complaint was that the adjudicator did little to control the number and extent of submissions made by the parties.

The difficulty for the adjudicator is traversing the often blurred line between allowing a party a reasonable opportunity to put its case/respond to a point made by the other side and not to incur unnecessary expense. The rules concerning the former point will be well known and I would suggest that, in the majority of cases, would serve to give the adjudicator the benefit of any doubt concerning his conduct in permitting further submissions. Whilst there has been some judicial criticism of adjudicators in the context of allowing the timetable to “creep”, anecdotal evidence suggests that, in the majority of instances, the reason for timetables extending is as a result of the parties seeking to make further submissions.

The “unnecessary expense” issue is something of a double edged sword. On the one side, we have the expense of the adjudicator to consider. Here, one view is that the adjudicator may incur unnecessary expense if he reads everything he is provided with at too early a stage. Whilst this may better equip the adjudicator to be able to call time on submissions, e.g. because he is able to form a view that a party’s case is likely to fail and thus needs no further response from the other side, it may also be wasted cost as a result of concessions and/or agreement contained in a response/reply document. Further it may well involve the adjudicator in having to read things twice and/or re-read in at a later date.

The other side to consider is the expense of the parties. Clearly, if the adjudicator decides not to allow further submissions this will reduce the cost that party incurs. Similarly, if the adjudicator places an explicit limit on the issue/point that he will allow further submissions. However, I would suggest that an adjudicator would need to have read in sufficiently to be able to do this. One rule of thumb is for the adjudicator to ask himself whether the party who has made the final submission on a particular issue has lost that particular point/issue. If so, then a further submission is unnecessary. Conversely, if a party is likely to be on the losing side as a result of something contained in the other side’s latest submission, there is a risk that not allowing a further submission could result in a breach of the rules of natural justice.

As with many complaints, it is difficult to give advice that would apply to all situations as the question of whether a complaint is legitimately made will ultimately turn on the specific facts faced by the adjudicator at the time. However, in view of the potential for breaching the rules of natural by virtue of excluding a submission, it may well be difficult for a complaint to succeed. Having said that, I consider an adjudicator should at the very least be alive to issues discussed here.

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