An Adjudicator’s Decision has just been received and it is clear that the points made have been misunderstood and the adjudicator has got the facts wrong. Can enforcement be resisted?
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 adjudicator 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 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 tenuous 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 decision 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 overlooked in this scenario. Again, it must be said that some adjudicators are not good at handling 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 adjudicator, 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 that very thing, 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 devised as a method of getting a quick result for problems that regularly bedevil the construction 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 adjudication. 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 order to answer the question asked. Even if the adjudicator has misunderstood the facts or simply got them wrong, it is not enough to resist enforcement of what might well be a flawed decision.
Basically, it is a policy decision. Adjudication is a quick method of settling disputes, but a comparatively coarse remedy. With this kind of remedy, the parties have to accept that there will be rough justice and, occasionally, even bad errors. If the money at stake is sufficiently large, no doubt the parties will seek a solution in a forum that can give proper time and consideration to the arguments.
The main acceptable grounds for resisting enforcement of a decision tend to concern whether the adjudicator had the jurisdiction to make the decision. If it can be shown that there was no jurisdiction, the enforcement can be resisted, because there is no decision. Lack of jurisdiction is often due to a failure to answer the question asked, so that the adjudicator has no jurisdiction for the decision about an unasked question. It may also be because it can be shown that there was no dispute in being at the time the notice of intention to seek adjudication was issued. Successful challenges have also been made on the basis that the adjudicator was in breach of the rules of natural justice. This can be quite complicated in practice, but in essence it refers to the need for each party to have an opportunity to put its case and the fact that the adjudicator must not discuss the dispute with one party in the absence of the other. Obviously, a decision will also be thrown out if it can be shown that an adjudicator was biased in favour of the other party.