Adjudication in the era of COVID-19

By: Tony Bingham, arbitrator, adjudicator, mediator and barrister

Lockdown on 23 March 2020 brought it home. Victim numbers of COVID-19 were rising exponentially. Social distancing, washing hands, touching elbows wasn’t enough. Stay at Home was the high-volume cry. I was hugely impressed with the RICS. It was ahead of the struggle. It was immediately in touch with us Dispute Resolvers, because some construction folk were already in desperate straits about getting-paid. What could we (and the RICS) do about money disputes?

8 April 2020: The Construction Leadership Council put out a memo:

“The CLC is increasingly concerned about the management of payment in the supply chain, and the risk that clients and firms will seek to invoke contractual clauses to the detriment of other firms. We are clear that all construction business should continue to pay in accordance with agreed contractual terms. Similarly, firms should not be threatening to invoke penalty or other contractual clauses, when it should be the priority of all clients and firms to sustain the industry. Our actions at this time will be remembered. All firms should think hard about how their reputation could be damaged by not doing the right thing.”

Within days, we adjudicators and the RICS devised a super low-cost, super high-speed Adjudication for disputes under £20,000.00. However, the RICS Panel was on high alert to put our backs into the CLC message. I had to alter my approach to Adjudication disputes. I have.

My preferred previous procedure was to take an actual look at the site... get a feel. Not just that, but add in a meeting around the site table to eyeball the management, architects, engineer, QS. But now, it would take a crowbar to get me away from my desk... I was on my precious desert island. These COVID-19 critters (they reminded me of Space Invaders) were not going to get me! So, disputes would have to be dealt with on documents only. I rejected this ‘Zoom’, ‘Team’ malarkey. I agreed to receiving the stuff on my screen, and yes, in hard copy too. Not only that, I wanted the files, documents numbered and I wanted the arguments (the “Submissions”) to point to the page number of any document relied upon. It’s called ‘pagination’. Folk complied (ish). My lesson, on looking back over these 15 months, is that we adjudicators can get to the heart of the matter, reach a fair decision on all issues and points on ‘documents only’. In all these 15 months, I have only felt obliged to visit site on one occasion. It was a party-wall noise dispute. I wanted to listen. It was expensive.

Go further, the sharp boot in the backside, caused by this virus, made me think. I reckon that 20 years, or so, of Adjudication has seen it slide into unnecessary expense. Look, the job is to act ‘fairly and impartially’ as between the parties, giving each party a reasonable opportunity of putting its case, and dealing with that of his opponent. Moreover, the procedure is to avoid unnecessary delay or expense. My hitherto meetings on site, or in lawyers’ offices, tended to see me “lifting stones” and watching for creepy crawlies to emerge. I realised recently, my site inspections were to get a feel (I thought) but more likely, I like – yes, like – visiting building sites. It reminded me of what I did as a young QS.

With hindsight, in truth, the visits rarely added a great deal to the task of deciding the dispute. It’s all very well saying the Adjudicator is entitled to “take the initiative to establish the facts and the law”, but the trouble with that is that it's like pulling a party-popper at a kid’s birthday party… the bits go all over the place. I ask a question and lo’ it gives way to an all singing, dancing commentary, new evidence, or worse, one side thinks the Adjudicator’s probing questions are designed to help the opponent. So, my ‘documents-only’ approach, my COVID-19 lockdown lesson, is to decide the dispute on the case put. Do you see the difference? The ‘documents’ have to speak for themselves. It’s up to the parties to put their case... it’s their evidence, not helped by the adjudicator, asking for corroboration, when there is none already in the bundle. It’s also a matter for the parties to explain the law, explain the contract. That’s what I mean by deciding the dispute on the case PUT... not my case put.

I will give way on one angle I was not keen on before lockdown: I was not keen on letting the parties put in round-upon-round of commentary, submissions. But in documents-only (i.e. no meeting), I am much more content to allow a Referral, a Response, a Reply then allow, if asked, a Rejoinder and a final Reply (Surrejoinder). The 28 days, sometimes then go longer, but each side has had ample opportunity to vent its spleen, if you see what I mean. Unless... unless the Response to Referral is hopeless; then I tell the parties to stop because I have “heard enough to decide the case”. I read the submissions as soon as they arrive.

And, when it comes to my Decision, those ‘Low-Value’ ‘High-Speed’ disputes get the very minimum of why I have decided this way or that. The bigger disputes get Reasons, but I have cut back on the supporting, (forgive the word), waffle. I have realised that in Adjudication I only need to show that I have thought about it. It truly doesn’t need umpteen pages of ‘War & Peace’.

So, COVID-19 pulled me up. Can we do it cheaper? Yes. Is it less accurate? No. Has COVID-19 taught me a lesson? Yes. Did it need COVID-19 to do that? No, of course not. Watch out for the space invaders!

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