Civil Engineering Reference
In-Depth Information
The short answer to this is 'No', at least not on those grounds. When an adjudicator makes
a decision, the parties must carry out that decision within whatever timescale the adjudic-
ator has laid down. If a party fails to carry out the decision, the other party has the right to
apply to the court to enforce the decision. The decision of an adjudicator, while not quite
sacrosanct, is at least protected until the parties decide that one or the other wants to have
the dispute finally decided in arbitration or in legal proceedings.
Adjudicators are human like the rest of us. Sadly, some adjudicators seem to have a tenu-
ous grasp of the law. Nonetheless, when an adjudicator has been nominated, or perhaps the
parties have agreed the name between them, that person is the one entrusted to make a de-
cision on the merits of the dispute. It may well be that the adjudicator misunderstands some
of the points made, and some participants do not make themselves very clear. On the other
hand, some participants are represented by experts who subject the adjudicator to a barrage
of words.
It is not unusual for an adjudicator to receive half a dozen or more lever arch files as the
referral and a couple of similar-sized files as the response, to say nothing of a multitude of
submissions on jurisdiction. It is little wonder if some of the more subtle points are over-
looked in this scenario. Again, it must be said that some adjudicators are not good at hand-
ling clever points and generally try to come to a decision on what they believe is the overall
justice of the case. Of course, this is not what an adjudicator is supposed to do. An adjudic-
ator, just like an arbitrator or a judge, is charged with applying the law, not a personal gut
feeling. Lord Denning may have been famous for his instinctive sense of justice, but he was
an exception, and in any event he could never have been accused of not knowing the law.
Adjudication was never intended for this kind of detailed argument. It was originally de-
vised as a method of getting a quick result for problems that regularly bedevil the construc-
tion industry. The principle is that if the adjudicator answers the right question in the wrong
way, the decision will be upheld by the courts, but if the adjudicator answers the wrong
question in the correct way, the decision will be a nullity. Another way to put it is that the
adjudicator can answer only the question asked in the notice of intention to seek adjudica-
tion. Neither party can unilaterally introduce new questions; there can be no counterclaims.
The only exception is if the adjudicator has to answer a question that has not been asked in
simply got them wrong, this is not enough to allow enforcement of the decision to be resis-
ted, although the decision might well be flawed.
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