18/03/2015
Welcome back. If you have been following our adjudication series you will know that we have covered many topics surrounding this type of dispute resolution including:
In this instalment we will be discussing The Powers of an Adjudicator, including:
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The origins of an adjudicator’s powers
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Duties and powers of an adjudicator
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Responsibilities of an adjudicator
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The conduct of the adjudication
The Origins of the Adjudicator’s Powers
An adjudicator’s authority or jurisdiction derives from the construction contract between the parties to the adjudication and/or the Housing Grants Construction and Regeneration Act 1996 (the Act) or the Scheme for Construction Contracts (England and Wales) Regulations 1998 (the Scheme).
The legislation sets out the minimum powers that an adjudicator should possess in order to deliver a competent decision. The construction contract can widen and extend the powers granted by the Act, or the Scheme if it applies. It is the contractual terms agreed between the parties on the powers and authority granted that will be given the most weight when deciding the capacity of the adjudicator.
Duties and Powers of an Adjudicator
The main difference between an adjudicator and a judge rests on passivity. Under the Act an adjudicator must be given the power to act pro-actively to discover the facts of the dispute and apply the law in order to resolve it. If the construction contract does not expressly provide for these powers, they will be implied by the Act. This is in stark contrast to a court of law where a judge is required to make a decision based on the facts and arguments placed before him or her by the parties’ to the dispute’s legal counsel.
However, in the unreported case of McAlpine PPS Pipeline Systems Joint Venture v Transco Plc it was made clear that an adjudicator can only act within the boundaries of the dispute as it is set out in the referral notice. They cannot seek to resolve issues between the parties that may come up during the process of adjudication.
An adjudicator also has the power to set a timetable for delivery of documents and request additional evidence, make site visits, appoint expert witnesses and issue any other directions related to the conduct of the proceedings (such as requesting an oral hearing).
An adjudicator also has the power to investigate and rule on any challenge to his or her jurisdiction. They can either decide that the challenge has merits and resign as the adjudicator for the particular dispute, or rule that the challenge has no basis and continue with the proceedings. If the parties agree to be bound by the adjudicator’s decision regarding his or her jurisdiction then they cannot raise another jurisdictional challenge. However, if one party reserves their right to challenge then they will be able to resubmit it during the enforcement proceedings.
Responsibilities of an Adjudicator
Alongside an adjudicators reasonably flexible powers comes responsibility. First and foremost, an adjudicator has a duty to abide by the rules of natural justice (ABB Ltd. v BAM Nuttall Ltd [2013] EWHC 1983 (TCC)) and administer the adjudication in a fair way.
In McAlpine PPS Pipeline Systems Joint Venture v Transco Plc it was also pointed out that an adjudicator must act within considerably tight time frames and therefore, it may be prudent and easier to make a decision based on the evidence presented in the referral and response documents rather than launch an independent enquiry.
The Conduct of the Adjudication
Paragraph 14 of the Scheme for Construction Contracts (England and Wales) Regulations 1998 provides that parties to adjudication must comply with the directions given by the adjudicator.
In practice submissions received after the reply are common and the adjudicator has a duty to consider any relevant submissions put before him or her (para 17 of the Scheme). However, this is subject to para 13(g) which states that an adjudicator may:
‘ give directions as to the timetable for the adjudication, any deadlines, or limits as to the length of written documents or oral representations to be complied with’.
The Decision and its Delivery
An adjudicator has a duty to deliver his or her decision within 28 days and this rule is strictly enforced by the courts as the main purposes of adjudication are speed and certainty. If the referring party consents the adjudicator can extend the time period to 42 days.
The decision and its delivery will be discussed in depth in the next post pertaining to this series.
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Fisher Scoggins Waters is a leading construction, engineering and manufacturing litigation firm, specialising in disputes and disasters. For further information on this article or any of our litigation services, please contact us on: +44 (0) 207 993 6960.