South West Region Inaugural meeting
The meeting was held on May 10.
Chairperson : Jonathan Brooks
On behalf of the Adjudication Society : Peter Chapman
Guest Speaker : Guy Cottam spoke on " 5 things that are going right and & 5 things that are going wrong with adjudication ". His talk is available online in PDF format.
Jonathan Brooks thanked everyone for attending this inaugural meeting, outlined future events and introduced the speakers. He commented on the importance of the questionnaire that had been handed out in obtaining members views and experiences of adjudication. A summary of the responses to the questionnaire has been complied and are attached to these notes.
Peter Chapman spoke about the origins and aims of the Adjudication Society and commented on the continuing growth of the Society as a whole as evidenced by the high level of interest and increasing membership. He stated that he had spoken at the inaugural meetings of several regional branches of the Society recently which, he suggested, was further proof of the continuing interest in this area of dispute resolution.
1. In the light of the Glencott case and the questions of natural justice raised in it should adjudicators meet the parties and what are the implications should one side not turn up? (Steven Homer, Bevan Ashford)
Guy Cottam felt that Glencott was wrong in that the parties know the situation and that agreement between the parties should not preclude meetings being held. Steven Homer felt that adjudicators should not be too critical of the parties for not attending meetings organised at the behest of the adjudicator.
2. Considering the Glencott and Discain decisions, which appear to restrict the power of adjudicators, what was Guy Cottam's view as an adjudicator? (Robert Jones, Bevan Ashford)
Guy Cottam suggested that you should look at the way adjudicators are trained and also remember that adjudication is only a temporary, interim decision. It is always open to the parties to go to litigation at a later stage. Robert Jones suggested that the overall effect of the natural justice act was that it is hampering adjudication by not encouraging private meetings. Guy Cottam stated that he is a supporter of private meetings to get an idea of what the case is about however he commented that meetings were expensive and not always necessary in smaller adjudications.
3. Was Guy Cottam satisfied generally with the ICE notice of dissatisfaction procedure? (Laurence Davies, Masons)
Guy Cottam replied that it concentrates the mind and that by and large those that have been through the process agree with it. Jonathan Brooks also added that the procedure crystallises the dispute between the parties and leads to discussion, settlement or at least clarification and appears to work on a practical level. Guy Cottam also added that he had been to a recent debate at the ICE on this issue and that advice had been split. He said it would be interesting to see what judges make of the procedure in the future.
4. Should there be a limitation on the size and type of dispute that could be referred to adjudication ? (Peter Morton, Morton Associates)
Guy Cottam said that there should not be limitation on size and that in relation to type he would like to see all matters going to adjudication. He was also opposed to the idea of adjudicators' fees being paid up front, and commented that recent ICE research comparing hours charged by adjudicators at the lower rate concluded that those charging lower rates accumulated more hours. He said that broadly adjudicators who are not lawyers had charge out rates between £75 and £175 per hour, with lawyers charging between £125 and £500 per hour. He stated that the average adjudication was about 20 hours and cost around £2,000.
5. Diane Grimshaw commented on the difficulty of recovering adjudicators' fees.
She said that through her experience she had found that it was difficult and expensive to recover through the courts particularly with parties who were experienced at avoiding liability. There was therefore a high proportion of non-payment. She said that unlike in normal client relationships in adjudication the parties have no choice and there is therefore no good will.
JCB stated that by and large in his experience there was a lack of complaint with the loosing parties knowing that they won't get a decision set aside in the courts therefore they take the payment of the adjudicators' fees "on the chin". Guy Cottam went on to add that His Honour Judge Thornton in considering decisions made by adjudicators was surprised by the level of adjudicators' experience. Guy Cottam felt that the quality of adjudicators was very changeable however most were focused and effecient with lawyers, because of their professional skills, being the most able.
It was also suggested that it depends on the nominating body you go to as to the quality of the adjudicator appointed. It was suggested that the ICE have 2 sections with list A for complex issues of a legal nature and list B for smaller, final account issues. However, this approach was rejected as it was felt that the smaller issues can be equally complex and also if the parties know the existence of an A and B list would they have confidence in using the B list? Perhaps it would be better to have a legal and a technical discipline list instead? Overall it was felt that there was a lack of transparency as to how the nominating bodies appoint their adjudicators. Guy Cottam suggested that if you name the adjudicator in the contract then the problem was reduced or perhaps have a list of people named in the contract from which to choose an adjudicator.
6. Barry Hobbs, Laytons raised the issue of the ability of the opposition to raise submissions and include new legal arguments at a relatively late stages of an adjudication and questioned whether adjudicators should accept it or not. In his experience he had found few who had been willing to "grasp the nettle" and refuse to admit late submissions.
Guy Cottam said that if documents had been submitted then he was bound to look at them since it was difficult to disregard them. He also added that in his experience he had found that he very seldom got anything at the end of the dispute that affected the decision he add initially reached. JCB added that perhaps there should be guidelines for good and bad adjudicators. Guy Cottam added that you would need to go back to the first principal of adjudication that if it is not in the notice then the adjudicator has no jurisdiction to include it.
7. With all these societies, such as the Society of Construction Law, how does the Adjudication Society fit in? (Roger Mills)
Peter Chapman stated that no other society deals exclusively with adjudication and confirmed that there had been a lot of interest in this area which had lead him to the conclusion that there was obviously a market for a specific adjudication society. Barry Hobbs went on to suggest that whilst adjudicators' decisions were quick and cheap it was difficult to enforce adjudication decisions in Bristol rather than London and that in his experience trying to enforce adjudication decisions before a District Judge had led only to "blank looks".
8. Should an adjudicator refuse to accept a dispute because it is obvious that the matter is not capable of being resolved within 28 days? (Richard Wade, Linnells)
Peter Chapman said that in that instance he would get an extension of time from the parties and that there could be a problem only if the extension time was not granted. Richard Wade countered by asking where would adjudicators draw the line? Guy Cottam commented that ultimately the parties can have the matter resolved by meeting together and finding out what each party wants.
Richard Wade stated that it was fine in the instances where an adjudicator was pro active and got to grips with the issue but the Act was non-specific and only states that an adjudicator may take the initiative under the Act. Guy Cottam agreed however he stated that the adjudicator must be careful of not going down his own avenue of investigation by asking costly questions which ultimately prove an be an expensive "frolic of your own". He stated that it was the obligation of the adjudicator to tell each party how much it was going to cost to go down a particular route. It was, therefore, important to keep the parties informed as to costs.
9. A question on the problem of adjudication where there was no written agreement between the parties was raised?
Guy Cottam stated that most these days are evidenced in writing when you get down to it or at least there is some form of Letter of Intent.
JCB thanked Guy Cottam and Peter Chapman for speaking and the meeting was closed.