Mock Adjudication
On 10 June 2003 the South West branch of the Adjudication Society held a mock adjudication at the offices of Clarke Willmott in Bristol.
The format of the event, which was chaired by Jonathan Brooks, consisted of a series role plays divided into Acts designed to replicate the adjudication procedure and raise common issues that occur. The Referring Party, Pseudo Pumps, were represented by Rachael Ansell of 4 Pump Court whilst Andrew Worby of Davies & Partners played the part of Pseudo Pumps Director. Mactar Plc, the Responding Party, were represented by Stephen Clarke of Clarke Wilmott who played the part of the Mactar Plc Director. Adam Constable, also of 4 Pump Court acted as Counsel for Mactar.
The adjudication "dispute" concerned the recovery of sums due under a contract to provide industrial pumps that the referring party contended amounted to a contract variation. Each of the Acts was designed to represent a separate stage of the adjudication proceedings with a discussion of the relevant issues that can arise at each stage.
Act 1 began with a discussion between Pseudo Pumps and Counsel as to the merits of referring the dispute to adjudication taking into consideration the effect on relationships, the cost implications, the timing of commencing an adjudication and the tactics that can be employed. A discussion took place as to appointment of an adjudicator together with a consideration of the advantages of using an adjudicator with the appropriate level of skill and experience.
Scene 2 began with a discussion between the responding party, Mactar Plc, and their Counsel, considering the notice of adjudication that they had received. Matters discussed included the question of the jurisdiction of the adjudicator and the advantages/disadvantages of challenging his jurisdiction to decide the current dispute as well as developing the argument that the dispute had not crystallised for the purposes of the Construction Act.
Section 3 concerned the appointment of an adjudicator with Pseudo Pumps contacting the adjudicator to see whether he was willing to act, enquiring as to his availability and checking whether there was any conflicts of interest.
Act 2 dealt with the drafting of the referral notice by Peusdo Pumps. Due to the tight time frame of 28 days for the an adjudication Pseudo Pumps and Counsel discussed the importance of having the referral notice ready before issuance of the notice of adjudication in order to have the agreed facts and legal considerations in place. A general discussion as to remedies including interest and cost considerations was also held at this time.
Scene 3 concerned the adjudicator, Guy Cottam, receiving the referral notice and the procedure he follows on receipt. One of the important issues to come out of the mock adjudication was an explanation by Guy Cottam's of the benefits of having a meeting between the parties in order that the issues can be clarified and the parties can present their case. Indeed, Mr. Cottam confirmed that one of the first issues he considered was whether a meeting is necessary. If it is then a date is set and a timetable for the adjudication process set down. He also considered the responding party's challenge to his jurisdiction and discussed whether or not he had sufficient jurisdiction to act. In the present case he concluded that he had the necessary authority and informed the parties that he was willing to act.
In considering the responding party's challenge to jurisdiction the adjudicator will consider whether to hold a meeting to discuss these and indeed Scene 4 was taken up with Guy Cottam setting out his deliberations including his decision as to how he should proceed with this matter. He concluded that a meeting between the parties would be worthwhile in order that the issues could be clarified and would give both parties the opportunity to present their case. A general discussion was also held as to the costs incurred in requiring both parties and inevitably their legal advisers to attend a meeting.
Act 3 concerned the drafting and dispatching of the Mactar's response to the referral notice. Mactar and his Counsel considered the referral notice and how to address all the issues contained in it. Their views as to the meeting proposal, liability and any counterclaim and any further costs were discussed.
Scene 2 was concerned with the receipt by the adjudicator of the reply to the referral notice and his considerations including his need to list the points in issue and set out those that needed further clarification. He considered whether a meeting was beneficial and if so who should attend such a meeting. Any points of law were raised and he would normally start drafting his decision at this stage.
A meeting was held between the parties with the adjudicator presiding in order that each side could present its case, explain its purpose and discuss the issues. The adjudicator invited comments and sought to obtain agreement on the issues in dispute. He also considered whether any further submissions might be helpful or desirable and if so an agreed final timetable set out. The meeting produced a lively debate with each party keen to put their case across.
Finally Act 4 contained the adjudicator's decision with the adjudicator giving a resume of the issues and the facts found. In his decision he also considered the legal arguments, issues and the law. A discussion as to costs was also held. In the event the adjudicator found that Peusdo Pumps were entitled to the additional sums they were claiming from Mactar under the contract.
The event was extremely well attended by over 110 people from across the construction industry. The next event to be held by the South West branch of the Adjudication Society will take place on 25 September 2003 at Bevan Ashford's office in Bristol. The talk will consist of an Annual Adjudication case update given by Andrew Bartlett QC.
