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Thank you, m’lud
Judge Coulson ruled recently that a court can pause
a case and direct the parties to adjudicate their differences
away. Which, apart from anything else, is a real vote of
confidence in adjudication …
“Yes, yes, Cubitt can require DGT to come
dancing to the adjudication ball. But can Cubitt ask the court
(politely) to clear off in the meantime?”
I crowed with delight when I read this
decision. Why gloat? Well, it was because a judge gave
adjudication a vote of confidence. How so? He ordered a pause in
a dispute that was going to court to let the parties adjudicate.
One of the reasons for the stay was that since this was an
ordinary final account dispute it was ideally suited to the
experienced adjudicator in the frame. Send the judge a prize.
So let me tell you the story. Steel and
cladding contractor DGT had an ordinary difference of opinion
with main contractor Cubitt Building & Interiors. Everyday
stuff. Instead of falling out, DGT called for an adjudicator.
The award favoured Cubitt. That dealt with an interim
application. Cubitt’s valuation and withholding notice were
sound. The adjudicator’s job was only to decide some technical
points, but the underlying difference of opinion about the
account itself was not part of this adjudication.
DGT then decided to begin an action in the
court about the account differences. Cubitt objected. It
required the account to be adjudicated: it was a dispute about
the account, which had not previously been adjudicated, so stop
the litigation. Cubitt reinforced its view by pointing to a term
in its in-house subcontract: “Any dispute, question or
difference arising under or in connection with the subcontract
shall, in the first instance, be submitted to adjudication in
accordance with the Association of Independent Construction
Adjudicators (AICA) adjudication rules and thereafter to the
exclusive jurisdiction of the English courts.”
Truth to tell, it doesn’t matter much whether
that is a term in the contract or not. The right to adjudicate
is a statutory right. That’s what the Construction Act says.
Either party can do it. It is not a “must” until one of the
parties makes it so. Cubitt and DGT are in a construction
contract. Parliament says if either party wants the other to
come to the dance, they will, must, or shall. And no agreement
to dump parliament’s law can work. So, it is always open to any
party in the face of court proceeding or arbitration or
mediation to say “be that as it may, I still want to
adjudicate”.
That’s all very interesting. But then ask,
what’s the score when Cubitt wants the litigation stopped or put
on pause? Yes, yes, Cubitt can require DGT to come dancing to
the adjudication ball. But can Cubitt ask the court (politely)
to clear off in the meantime? The answer is yes, if it makes
sense. Judge Coulson explained how this all works.
First, it was not necessary for Cubitt to
have those contractual rules. The right to adjudicate was
inviolate for both parties. The key was how sensible it would be
for the High Court to let an adjudicator first do their stuff.
And here is where there was a huge test for adjudication,
adjudicators and adjudicating. Let me tell you this: if this
judge, a judge with enormous experience of adjudication from the
early day both as queen’s counsel, then a High Court judge, if
he had thought we had a half-baked, loony system, he would have
given no thought to pressing the pause button in his court. He
would have pressed on. I for one would have been crestfallen to
say nothing of being fed up. But instead I’m crowing.
The judiciary has been watching this process.
And just occasionally it has given us a nudge. And just
occasionally we have listened. The experience of adjudicators is
now massive. So, too, organisations like the nominating body
mentioned here, the AICA. It has worked tirelessly to review and
train its panel of adjudicators. The quality of its list is top
notch and the quality of decisions gets better and better.
The real “trick” was to stop being a “big
head” adjudicator. We are not here to decide what’s right nor
what ought to be the answer. We have learned to decide quarrels
only on what you two are arguing at this moment. We just decide
which argument is best.
If the High Court is willing to trust the
adjudicators to adjudicate, that’s the biggest compliment of
all, and by the way, if the adjudicator’s decision goes with the
other chap instead of you, it’s not because the other chap is
right – it’s just that his argument is more convincing than
yours …
Readers are invited to forward recent
judgments for reporting in this column (with full
acknowledgement) to: Tony Bingham, 3 Paper Buildings, Temple,
London EC4Y 7EU. DX: 37164 Biggleswade
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