Exceeding the speed limit

Professional people need to strike a balance between giving advice in the timescale required and taking long enough to be as confident as they can be that the advice is correct.

A friend works in-house for a building contractor. He once told me that his boss had had asked him to review a rather complicated contract, giving him 20 minutes to do it. The aggravating factor was that it was beyond doubt that this limitation would not be taken into account at his annual appraisal if the quality of the advice subsequently given fell short of the standard of a “polymath and prophet”.

My passion for the irrelevant forced me to tell him the true but unhelpful story of some advice I had recently received from a financial adviser. After the usual lengthy disclaimers and warnings there was a short paragraph saying that due to the turmoil in the financial markets they were not in a position to make any recommendations. Accompanying the letter was an invoice for the advice (which they later withdrew).

I suppose a more relevant but even less helpful reply might have been to refer him to the advice given to adjudicators in Enterprise v McFadden 2009:

“the adjudicator has to decide at the outset whether or not he can discharge his duty to reach a decision impartially and fairly within the time limit prescribed .... If he cannot, he ought to resign”

So faced with the choice between waiving his salary and resigning my friend gave the advice, for better or for worse.

His decision foreshadowed to the rather more helpful approach adopted by Mr Justice Coulson in Amec v Thames Water 2010:

“The need to have the 'right' answer has been subordinated to the need to have an answer quickly.”

Fortunately or unfortunately for all concerned (depending on your point of view) my friend’s company did not win the contract so the advice was never tested.

I remember when the HGRA was first being debated before it became law. At one stage it was being suggested that an adjudicator’s award would be final and binding with no recourse to the courts or arbitration. Many of those used to arbitrating large final account disputes and loss & expense claims over a period of months if not years were very concerned. Adjudication was fine for small disputes but it was very difficult to see how large complex disputes of a type commonly experienced in the construction industry could be resolved by a process which only took a couple of months from start to finish. As we now know when adjudications were imposed by the HCGRA there was a subsequent right to litigate or arbitrate. Many people thought that the adjudication process would almost always be followed by arbitration or litigation.

It was not to be. Over the years experience showed that in most cases there wasn’t a problem. The adjudication process worked and subsequent litigation or arbitration was the exception rather than the rule. However that is not to say that people were universally happy with adjudication as a remedy.

The main pre-occupations in the early years were testing the ability to fetter the right to adjudication and perfecting the jurisdictional challenge. In many cases these activities were met by the fairly robust response that the right to adjudicate is the will of Parliament and frustrating that will is not really allowed.

The advice to adjudicators to resign always seemed to me to run contrary to the absolute right to adjudicate any dispute, especially given the subsequent right to litigate or arbitrate. We would never suggest that an architect or engineer being asked to grant an extension of time should resign if it was all just too difficult for him to cope with. So why the difference? The answer of course is that adjudication is different from certification. It is a quasi-judicial process and concepts like natural justice apply.

So are we saying that Parliament’s will can be thwarted? What if that will leads, for example, to a denial of the right to a fair trial. This sort of debate is familiar to lawyers in countries with written constitutions where laws that offend the constitution can be declared invalid.

Is that what we are doing? Or are we looking for a way of reconciling two competing legal theories and seeking a “score draw” where both emerge with honour and stay friends? I think we are doing the latter.

Although there might be cases which cannot be adjudicated they are probably very rare. In most cases there is a way through to a result that will stand on its own two feet at least temporarily.

At the other end of the spectrum is Yule v Speedwell Roofing 2007. This is the case which says that

“benefits of speed and certainty underpin the statutory requirement that the decision of the adjudicator shall be provided within 28 days (or any extended period that is agreed), and not thereafter. This makes it important that both the 1996 Act, and the Scheme, are construed purposively to ensure that those objectives are maintained.”

... the sting in the tail being that if the adjudication takes too long it will be void (although the point can be waived).

So in a sense there are two speed limits. Yule shows us the minimum speed limit and the natural justice cases show us that there is also a maximum speed limit. If you try to do too much that is as bad as doing too little.