Although an advocate owes a duty to the client, the overriding duty is to the tribunal and that involves acting properly and fairly. Nevertheless, it is not unknown for an advocate to fall majestically short of this duty. This is amplified in the adjudication arena due to a combination of factors including the relative inexperience of the adjudicator and the private nature of proceedings. That said, a party representative who partakes in misconduct runs the risk of being exposed during enforcement proceedings. In Michael John Construction v Golledge [2006] the judge was most unimpressed with the conduct of the party representative who bombarded the adjudicator daily with quasi-legal points and failed to address the dispute at all.

As the fountainhead of western literature, Homer tells the tale of Odysseus who, confronted by the enchanting song of the sirens, elected to be bound to his mast. This enabled him to listen to that song but not be unduly influenced and thus not fall foul of the rules of natural justice. This chapter discusses ‘enchanting songs’ confronting the adjudicator and the available remedies and deterrents.

Methods of Intimidation

It is part of the game to exert pressure. However, there is a difference between the appropriate use of clear firm directions and intimidation or abuse to achieve a particular result – a practice commonly adopted by parties in an adjudication. Of several surveys into the problem of intimidatory tactics towards the adjudicator, a survey by RICS in 2015 of 30 of its panel was most concerning. The majority had faced some form of impropriety with 80% revealing to being on the receiving end of bullying and 73% to the threat of complaints to a professional body. In fact, one adjudicator received the following threat: ‘if you … continue, we will take all necessary steps to ensure you are expelled from your professional body’. Other common methods of intimidation include:

– Threats to withdraw, challenge the decision, not to pay etc.

– Threats of legal action against the adjudicator

– Threats to blacklist the adjudicator from a legal practice or company

– Threats ad hominem

– Derogatory language and use of profanities

– Repeated spurious challenges to the adjudicator’s jurisdiction

Deterrents against Intimidation

A golden rule when acting as a dispute resolver is to act without fear or favour: that is, to silence one’s prejudices and predilections. In his paper ‘The Regulation of Misconduct in Adjudication and Arbitration’, James Pickavance identified three tools the adjudicator can deploy when confronted with these intimidatory tactics: (i) make adverse inferences; (ii) award of adjudicator’s fees; and (iii) effects on decision. The author would not recommend using any of these tools when faced with intimidatory tactics from both an ethical and legal perspective. Nevertheless, the possession of these tools might useful from the perspective of a deterrent.

Paragraph 15 of the Scheme is quite specific, but the core part states, “the adjudicator may … draw such inferences from that failure to comply as the circumstances may, in the adjudicator’s opinion, justify“. The paragraph does not give the adjudicator a license to act with prejudice and any such action is not within the adjudicator’s powers. This clause just goes as far as giving the adjudicator licence to draw inferences as to the credibility of the party. It might be reasonable to infer an uncooperative party has something to hide.

An option available to the adjudicator to admonish a party for misconduct through the apportionment of fees is less controversial. It appears this is within the adjudicator’s powers through paragraph 25 of the Scheme but it would be wise to take this action with caution as it could signal the adjudicator has lost the ability to remain impartial.

Finally, there is the deterrent of effecting the decision and the redress awarded by the adjudicator. The adjudicator has a mandate to produce an enforceable decision within the tight timescales imposed by the Act and that negates any potential for a losing party to initiate a challenge on substantive matters. The adjudicator facing intimidatory tactics might be more inclined to make a more adverse finding against the provocateur. The author states categorically that this option is misconduct, damaging the legitimacy of the procedure and must remain a deterrent.

Dealing with Intimidatory Tactics

Adjudicators who are faced with these tactics must be resolute, stay professional and ensure not to descend into the arena. The adjudicator should always engage professionally with the parties and avoid inflammatory language. The adjudicator must not get into petty email exchanges which may exacerbate the problem but should demand the other party refrain from its intimidatory tone. Provocation from the other party may be to elicit a response that would ultimately invalidate the decision.

When a jurisdictional issue arises, the adjudicator should explain exactly how she intends to deal with it and respond quickly (not leaving it to when she writes her decision).

Whilst she should always receive and consider any submissions received from either party, if one party is failing to address the underlying issues and spending too long on peripheral or jurisdictional matters, the adjudicator should notify the party.

Where a party has indicated that it does not intend to participate any further in the adjudication, the adjudicator should examine the reasons why and encourage that party to participate. Failing that, the adjudicator should continue to send all correspondence, including the decision, to that party.

One way in which the adjudicator can evaluate the correctness of any action taken to deal with intimidation is to ask, if this goes to enforcement proceedings and a party challenges the decision, how will that email in isolation look to a judge who has not had any prior involvement in the dispute?

James Pickavance suggests that time management is key to help minimise the occurrence of parties resorting to intimidatory tactics. He states that the adjudicator should communicate a clear timetable advising of the consequences of any failure to adhere.

Discussion

An article in the Adjudication Society newsletter in August 2005 stated a solution to the problem could be found in improvements in adjudicator training. Maybe this A-Z can reignite the discussion or at least be insightful to adjudicators confronted with that ‘enchanting song’.

As to deterrents, the author suggests that, in the same manner that a firm might keep a record of misconduct and blacklist any adjudicators, there could be a regulator to monitor the conduct of legal representatives during adjudication proceedings.