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Posted March 10, 2017 | Published in Dispute resolution

It’s behind me: The Xmas ambush

Things went a bit ’retro’ for me over the recent festive period. Three pantomimes were ticked off, Monopoly made a return on Boxing Day after a few years gathering dust; oh, and the week immediately before the Christmas holidays, three of my clients had Notices of Adjudication issued against them, followed by a fourth the following week. At least a couple of my colleagues had a similar experience (well, apart from the three panto bit … I mean really? Three?!).

After the initial thrill that I might ‘have to work’ and avoid what became a somewhat fraught London property experience, I then questioned just how this would all be managed. In particular, just how would the appointed adjudicators deal with what appeared to be strategic ambushes in an attempt to gain advantage.

"There was therefore no obvious case law reference which could save the day; the adjudicators were in charge."

On this point, there were genuine resource issues, with client offices closed for two to three weeks. In theory, Responses could have been directed to be submitted sometime between 30th December and 3rd January.

When adjudication first started, arguments in respect of breaches of natural justice built up some momentum. This momentum was slowed down somewhat in 2009 by the cases of The Dorchester Hotel Ltd v Vivid Interiors Ltd and Bovis Lend Lease Ltd v The Trustees of the London Clinic. Adjudication is an inherently rough and ready process they found. The courts will therefore treat with scepticism arguments based on supposed breach of natural justice. Generally speaking, it is for an adjudicator to decide whether or not he or she has enough time to conduct an adjudication fairly. There was therefore no obvious case law reference which could save the day; the adjudicators were in charge.

The appropriate representations were made, and it transpired I needn’t have worried. Each adjudicator made directions that recognised the difficulties in dealing with an adjudication at that time of year, that ensured the responding parties had a fair opportunity to respond, and that both parties co-operated as regards to a timetable and the time within which a decision was required to be reached.

Now that these adjudications, and their respective consequences, have concluded, I reflected on the apparent strategies of my opponents. Had it worked?

This is obviously a difficult question to answer with any certainty. On the one hand, with some clients forgoing part of their annual leave, albeit in an ad hoc manner, it could be argued that we gained more time in real terms to respond than we might otherwise have done had the adjudications been raised in the first week of January. On the other hand, starting to try and put together the necessary elements of a detailed Response without access to office amenities and/or resources and the client other than on an ad hoc basis is not ideal.

Truth be told, it is possible that a party will gain a marginal strategic advantage by commencing an adjudication at this time. There is at least an equal chance, in my opinion, that an adjudicator will ensure that no advantage is gained. Reviewing the decisions in the adjudications, I do not consider they would have been any different had they been commenced at a different time.

The next question I had was why the apparent surge in Christmas ‘ambush’ adjudications this year when compared to last? Is it a sign of market stress?

Looking at each of my own adjudications, it seems to have been simply a coincidence. Two of the adjudications involved parties who were ‘one-off’ clients and not in the construction industry. We have seen no obvious signs that the construction market is under any more stress than it usually is!

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