The Construction Act gives the adjudicator the power to “take the initiative in ascertaining the facts and law“. That implies the right to call a meeting with the parties in an otherwise paper-based procedure. The Scheme p.13 expressly gives the Adjudicator the power to hold meetings, call site visits or inspections. If the meeting is held in a formal manner with the semblance of litigation it is often referred to as a ‘hearing’. In this form, the adjudicator may go further than the ordinary and order that detailed submissions are heard on legal points or may request the participation of witnesses to face lengthy cross examination and even ‘hot-tubbing’.

The other germane statutory requirement is the obligation of the adjudicator not to incur unnecessary expense and therefore the adjudicator must consider whether the likely cost of the meeting is justified or whether the issues can be dealt with just as effectively through written submissions.

That begs the question in what circumstances it might be deemed necessary for the parties to make oral representations. How about a dispute of fact whereby the parties are reliant on conflicting witness evidence of what occurred on site, with little support by way of contemporaneous records? This scenario may be worthy of incurring the expense of a meeting. By orally testing the conflicting evidence, the adjudicator may be better positioned to weigh the credibility of the witnesses.

With respect to site visits, it will always be dependent on the facts whether it will be deemed necessary. How about disputes related to ongoing defects or where the conditions or constraints of the site lie at the heart of the dispute? It could be argued that these scenarios warrant a site visit – although again, this remains at the sole discretion of the adjudicator. In Wycombe v Topevent [2015], the defendant argued that the adjudicator had acted in breach of natural justice by refusing to visit site. The Court considered a site visit to be of no assistance to the principal issue between the parties (which was the value of the variations and the works carried out), which was a paper exercise that could potentially be assisted with photographs. As such, the Court found there was no material breach of the rules of natural justice.

Preparation & Planning

A meeting should be arranged with as much notice as possible to ensure the parties are able to attend. In Rydon v Affinity [2015], the legal representatives from Affinity were unavailable to attend a meeting for the following 5 weeks and so the meeting went ahead without Affinity. The meeting was recorded, and a copy of the transcript was provided to both parties. In Court, Affinity argued that the adjudicator had breached natural justice for undertaking a unilateral meeting. HHJ Raeside QC rejected this argument noting that the adjudicator had not exceeded his powers, nor breached natural justice. This case law gives some insight into the best course of action where the adjudicator might reluctantly decide to proceed with a unilateral meeting.

The adjudicator should request a list of attendees from the parties which will prevent any objections on the day and allow the meeting to concentrate on the issues on the agenda. In A&S Enterprises v Kema Holdings [2004], the adjudicator had not indicated any required attendees and followed to criticise one party for not having a witness present. HHJ Seymour QC refused to enforce the decision on the grounds of bias and a breach of natural justice.

The meeting location might be in person or virtual. If there is to be witness evidence given, then the adjudicator might prefer in person and if the meeting can be combined with a site inspection, then that might be favourable. Otherwise, the parties and the adjudicator should try to reach agreement on where the meeting is held. Although there are limitations of virtual meetings, the advantages including the mute function and the hand’s up function, enabling the adjudicator to maintain control.

Should a meeting be scheduled, it is imperative that there is an agenda, the parties are briefed and invited to comment beforehand. This will ensure that the meeting is productive and reduce the chances of misconduct. The agenda will depend on the facts of the case and can vary from the formal quasi-arbitration type procedure to an informal discussion. The agenda might consider the following:

Execution

At the start of the meeting, it is imperative the adjudicator sets off on the right foot and takes control. The parties will want the opportunity to comment on the case against them, but they must not resort to talking over each over. This should be made clear at the outset, and order must be maintained.

It is of utmost importance that the submissions by attendees are limited to the issues in dispute and that no new material is raised in the meeting, either adduced by the parties or, equally by the adjudicator going on a frolic of her own. Assuming the adjudicator or the parties recognise this issue, the extraneous matters raised can be struck out as inadmissible. On the contrary, should this not be recognised, and the material be considered relevant, the adjudicator’s decision could be rendered nugatory due to the adjudicator acting in excess of jurisdiction. Furthermore, there may be a breach of the rules of natural justice due to a party not being afforded the chance to respond to the new material. Either way, it is imperative that the meeting does not stray off course and remains within the confines of the agenda and for that matter the confines of the dispute.

In respect of site visits, these should also be treated as part of the ‘formal’ process with both parties in attendance. The adjudicator should avoid trying to ‘mediate’ the dispute or using the visit as means of exploring common ground between the parties. 

Conclusion

Meetings are an additional tool in the adjudicator’s arsenal and can be utilised to great effect. That said, owing to the private nature of the proceedings and the resulting inclination towards impropriety, the adjudicator must operate this tool with great dexterity. As such, adherence to an agenda is pivotal, or it might be, like Icarus, the adjudicator flies too close to the sun and scorches her wings. Icarus fell into what was later to be named the Icarian Sea. A lesson for us all.

Albeit the sole discretion of the adjudicator, as a rule of thumb if both parties have requested the event to take place, it might be considered reasonable to consent to their wishes. It is after all their dispute and if they don’t consider it unnecessary expense then who is the adjudicator to argue.