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21 November, 2001

The Branch had its last meeting in York on 21 November with guest speakers Peter Chapman and Len Bunton presenting papers. We concluded with an excellent floor 11 discussion on many burning issues as kindly summarised by Gareth Hevey of Denison Till, Solicitors

1 Mentoring – should Adjudicators have this facility?

Some thought yes – no different to “normal” business practice. Some declared they do it now. Some thought that an older more experienced adjudicator may unduly influence a less experienced adjudicator and the reasons given in a Decision may not then be the adjudicators own. Opinions strong in both camps.

2 Views on an adjudicator taking a Referral and a Reply and then giving his Decision 28 days later without a hearing.

General opinion was that this was not good for the long term success of the process. With a hearing, the view was that clients on attending feel that they have stated their case personally and directly to the adjudicator and feel part of the process. They are then more likely to accept the Decision.

3 Views on whether adjudication is seen as finality or as a stage in the process prior to arbitration

General opinion was that it depends on how many “noughts” are in the sum in dispute. If the is sum large enough then likelihood is that arbitration or litigation will follow. What adjudication Decision does is to focus the minds of the parties on the commercial realities of the dispute.

4 What makes a good Adjudicator?

One who takes positive control of the adjudication process. Sets a timetable at the outset and then drives the process forward, is not intimidated by either of the parties and meets the parties across the table to resolve issues.

5 Problems encountered in the adjudication process?

In the main lawyers not making submissions in line with the adjudicators time framework. This surprised the lawyers in the audience.

6 Views on the DTI draft amendments?

The removal of the adjudicators power to award costs was not vociferously opposed. Fair and reasonable but no costs sanction for Adjudicators to deal with badly particularised claims.

7 Has anyone seen a development in the number of global claims? Thoughts on global claims?

No discussion of note other than the view that if there is a global claim then the adjudicator may take the view that there is “no smoke without fire” and award something accordingly.

8 Views on the Ballast v Burrell case where an adjudicator declared he could not come to a Decision?

Mixed views were expressed. Some thought that the adjudicator was being paid to make a Decision and should have done so. Others that he was right in his declaration

9 Should legal views received by the adjudicator be disclosed to the parties?

The general opinion was that they should be disclosed to the parties but not if reasons are not required

10 Calderbank offers

General discussion on the theory of the adjudicator being in possession of a sealed offer to be opened only after reaching his Decision. View from the chair was that they should not be opened in any event. Opening prior to a Decision is not an option. Once a Decision is made the offer is immaterial. The adjudicator has the power and discretion not to open the envelope.

11 Adjudicator’s fees – views?

None forthcoming. (Possibly with a room full of lawyers the avenue of fees was not explored fully?) However, it was noted that the hourly rate had risen since 1 May 1998.

12 Have there been any experiences of disputes resolved by adjudication then going to arbitration or litigation?

One early experience from the audience was in the early days of adjudication, which was taken to arbitration on a point of law. The Decision of the adjudicator being overturned by the arbitrator.

The general view in the absence of statistics, was that this was not the trend. Parties on both sides of adjudication experience working intensely over a short period of time, expending management time and after the “pain” of the process. Usually they emerged “shell shocked” but satisfied that they had had their say and aired the issues. On that basis, unless there was a significant sum involved, most parties let the matter rest without further dispute.

13 Experiences of hearings.

A mixed response was forthcoming. The overall consensus was that they could be decisive in disposing of disputes. Some of the personal experiences were :-

A 4-hour on-site hearing was conducted following an inspection of the Woks. The adjudicator had been very inquisitorial and had interviewed witnesses of fact (e.g. plant operators, parties’ representatives) on their submissions to review and clarify matters. This had exposed weak arguments and inconsistencies and aided in making the final determination on the issues.

One hearing, on a Final Account dispute, had gone on for 2 days as each and every item was addressed. 1

4 Is Adjudication a preferred option for dispute resolution?

One audience member stated that there has been a resurgence of adjudication work recently. He stated that when instructed to draft a contract, in his view, the best course was to delete the arbitration clauses leaving the parties with the remedy of adjudication or the courts.

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