Adjudication during the Covid-19 restrictions: an option for disputes during lockdown?
On 23 March 2020, when Prime Minister Boris Johnson told us all to stay at home unless working from home was not possible, there was uncertainty over whether court hearings should proceed. Judges and lawyers are considered part of “…those essential to the running of the justice system…”,[1] and so are permitted to travel to and from court. However, is it essential to administering justice that a live, in-person hearing, is held?
Undoubtedly, like with most things in life, the answer is: it depends. Sometimes it will be inappropriate not to hold a live evidentiary hearing. But many disputes can be resolved effectively, efficiently, and fairly, without risking the health of the judges, lawyers, witnesses, and experts presented by the Covid-19 virus.
On 27 March 2020, Tipples J handed down judgment in Gil v London Borough of Camden [2020] EWHC 735 (QB). This was an application for permission to appeal that was supposed to take place in-person on 24 March 2020. Tipples J gave directions for the hearing to take place remotely in accordance with the new Remote Hearings Protocol that had been issued the previous week,[2] but the Appellant did not have access to a computer and could not afford the cost of attending a telephone hearing using her mobile phone. The Appellant could, however, send and receive emails on her phone, and so the judge directed that the application would be decided based only on emailed written submission by the parties.
Ordinarily, this case would have gone under the radar, but in the circumstances presented by the Covid-19 risk, it was picked up by various legal commentators as one of only (at the time of writing) a small number of examples of an alternative to participants physically attending a courtroom.[3] What is a little odd is how numerous commentators considered submissions by email to be unusual. One (very well-regarded) commentator even labelled the approach innovative.
A submissions-by-email approach is a long-established way of resolving construction disputes. Statutory construction adjudication was introduced in 1998,[4] and has proven both popular and effective over the subsequent two decades. Research from the Adjudication Society indicates that the number of adjudicators appointed by nominating bodies was 1,905 in the twelve months to April 2019.[5] By contrast, there were only 423 new claims issued in the TCC over the same period.[6]
As a reminder:
Adjudication is intended to be a paper-based dispute resolution method. The parties set out their case in writing, sequentially, and are usually given an opportunity to then respond to the other party’s submissions in writing. Witness statements, documentary exhibits, and expert reports, can all form a part of the written submissions;
Adjudication rarely involves an in-person hearing. Where one is considered desirable, it very rarely resembles a court trial. Instead, it sees the adjudicator taking the lead and focussing on a small number of key issues. The sorts of party-led, lengthy, cross-examination of witnesses and experts does not ordinarily take place;
Adjudication is intended to be a quick process, allowing most disputes to be resolved within 28 days. This helps to avoid the dispute spiralling out of control and impacting the progress of the construction works. By contrast, TCC trials take an average of between 36.6 and 59.1 weeks to resolve (depending on their value);[7]
Adjudication can be very cost effective. Crown Office Chambers offers a fixed-fee for adjudications, and many members of chambers are public-access qualified (meaning that a solicitor need not be instructed). In addition, unlike in court, there is no risk that losing party will be forced to pay the winning party’s costs.[8]
Whilst the court system is working commendably hard to ensure that hearings continue via video and audio conferencing wherever possible whilst we are all working remotely, adjudication already exists as a tried and tested alternative that could prove to be a quicker and cheaper route to resolution than trying to re-create an in-person hearing remotely.
Some may say that the inability to see the whites of the witnesses’ eyes, and to ask them difficult questions in cross examination, is a considerable disadvantage of adjudication. Depending on the nature of the dispute, that may well be right, but the value of doing so should not be assumed. The Law Commission reported that people do not generally rely on demeanour to detect deception but on the fact that liars are more likely to tell stories that are illogical, implausible, internally inconsistent and contain fewer details than persons telling the truth.[9] As Legatt LJ commented in SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 1391:
“One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.”
Accordingly, it might be said that the speed and cost advantages of adjudication can outweigh the absence of live evidence and cross-examination under normal circumstances. Add the difficulties introduced by trying to recreate a live-hearing by telephone and/or video conference, and adjudication begins to look even more attractive.
Details of Crown Office Chambers’ fixed-fee adjudication scheme can be found here, and further information is available from:
Construction Senior Team Clerk, Chris Sunderland: 020 7797 6227, sunderland@crownofficechambers.com
Assisted by Team Clerk, Christopher Kent: 020 7797 6178, ckent@crownofficechambers.com
[3] for other examples, see here for details of a trial being held by videoconference in National Bank of Kazakhstan & Others v The Bank of New York Mellon & Ors, here for video recordings of those proceedings, and here for a judgment arising out of a remote hearing
[4] Housing Grants, Construction and Regeneration Act 1996 Part II Section 108
[8] Whilst the losing party is often required to pay the adjudicator’s fees in full, such fees are normally very reasonable
[9] Law Commission Report No 245 (1997) “Evidence in Criminal Proceedings”
