Most of you will be aware of the phrase concerning a tribunal “going off on a frolic of its own”, which, in the context of adjudication, is a reference to an adjudicator using his or her own evidence to determine a dispute.
Hearings or meeting are an integral part of almost all dispute resolution processes, particularly where evidence is to be given orally and tested by cross examination or questioning.
The theme of this newsletter could be Adjudicators behave!
The adjudication provisions in the 1996 Construction Act have been amended by the Construction Act 2009. Others have already written in the Newsletter about the substance of these changes. What do they mean for the skills which adjudicators need to decide the disputes referred to them?
The TCC has a bespoke and rapid procedure for dealing with adjudication business in section 9 of the TCC Guide. For straightforward enforcement proceedings, a claim under CPR Part 7 remains the correct route.
Until relatively recently it had been the accepted position that the Notice of Adjudication framed and set the boundaries of any dispute referred to adjudication. Leading on from this the Responding Party’s defence could only respond upon the subject matter of the dispute as set out within the Notice of Adjudication. However, a number of cases over the last two years appear to have moved the goalposts somewhat, in allowing the Responding Party to widen the boundaries of the dispute framed within the Notice of Adjudication.
Those of you who are fans of the Fast Show will remember Jesse, the character who came out of the loo or a barn and announced what he ‘had mostly been doing that week’. He may well have been deluded when he announced he had been living on a diet of rubber tyres but at least he knew what was going on in ‘Jesse world’.
A complaint came across my desk recently regarding the amount of time an adjudicator had spent on an adjudication that had settled. The criticism was that the adjudicator had spent more time, and generated a higher fee, than was considered necessary.
The highlight of this issue is a study into the recent history of adjudication, how the process used has varied over time and how it has been impacted by the strength of the construction industry. It makes for very compelling reading demonstrating some interesting trends which I suspect conform to most people’s experiences. It’s well worth a read just to see how adjudication has fared through the downturn.
The case of Price and Price v Carter  EWHC 1451 TCC involved an application to seek permission to appeal under Section 69 of the Arbitration Act 1996, for an extension of time pursuant to CPR 62.9 and if granted an appeal against the award under Section 67 of the Arbitration Act 1996. It was found that permission was not required as the contract gave the parties an automatic right of appeal on a point of law.