January’s contract clinic question comes from a project director worried that an adjudicator assigned to her firm’s case is biased and unpredictable. Paul Woodley of DeSimone weighs up the options.
The Question
We’ve reached a dispute and have heard that the adjudicator assigned to make a decision on the case is notoriously biased and unpredictable-is there anything we can do to avoid them being allowed to continue on our case?
The Answer
This is not uncommon, however in many instances, the fear is based on perceived issues, anecdotal evidence or rumours-all of which can be dangerous.
Let’s unpack the situation and potential options available, along with practical steps you can take to give yourself the best chance of fairness.
You are not alone. Construction adjudication is designed to be quick and adjudicators must act impartially. This, however, does not stop stories of bias circulating among colleagues and professional circles. Many of the rumours are exaggerated, but some are not, and since adjudication can determine large interim payments, your anxiety is understandable.
Can you stop an adjudicator if you don’t like their reputation?
In short: no, not usually.
The alternative dispute resolution system is designed intentionally to keep things moving. Courts and commentators regularly remind us that it is meant to be rough and ready, and fast paced.
What this means in practice is that you rarely have an opportunity to ‘switch out’ adjudicators simply because you have heard worrying things about their past appointments.
That being said, there are situations where concerns regarding fairness would become something more concrete.
When your concerns actually matter
There are two pathways where your concerns can matter; the first being jurisdiction (think power to act) and then second being natural justice (think impartiality).
If the adjudicator was not appointed correctly, the notice has not been issued properly, or the dispute is not within the scope of The Construction Act, you could reserve your position. Formal legal advice would be prudent at this point. It is almost always better to do this early if you genuinely have partiality concerns.
Some of the triggers you could look for include:
- The wrong appointing body is used (check the contract).
- The dispute has not been ‘crystalised’. This is when one party has raised an issue, and the other party has either rejected it or failed to respond within a reasonable timeframe.
- The adjudicator has been appointed under the wrong contract clause.
- Multiple disputes packed into one referral.
You may have a foothold if you spot one of these.
Regarding ‘natural justice’, your worries, or the rumours you have heard need to tie to specific behaviours to become relevant. For example, if an adjudicator is not allowing you to respond properly, relying on without prejudice or privileged information, or even providing very unclear reasoning such that the losing party is unable to follow the logic.
You can read the full article in Construction Management Magazine.
If you have any concerns or questions, get in touch with our team today.