In the latest article of our alternative dispute resolution series Christopher Leadbetter of Clyde & Co examines some of the limitations of adjudication in deciding non-monetary issues.
It is common knowledge that adjudication was introduced in the UK in order to assist with payment disputes during the life of a contract, in an attempt to improve cashflow in the construction industry and to allow pro-jects to continue while disagreements over payments or valuations are resolved. Other jurisdictions which have adopted an adjudication regime inspired by that found in the UK, such as Australia, have mirrored this intent to the point of expressly limiting the remit of adjudication to payment disputes.
However, depending on contract wording, it is normally open to the parties to a construction contract in the UK to refer any dispute arising out of that contract to an adjudicator. The wording of the most commonly used standard forms permit such a referral. For example, cl W2.1 of NEC3 states that 'A dispute arising un-der or in connection with this contract is referred to and decided by the Adjudicator'. This provision clearly gives an adjudicator the power to decide matters other than payment disputes arising out of the contract. Similarly, an unamended JCT Design and Build Contract 2011 states at cl 9.2 that: 'If a dispute or difference arises under this Contract which either Party wishes to refer to adjudication, the Scheme shall apply ...' Clearly adjudicators have the power to decide disputes concerning any matter arising under these construc-tion contracts, including interpretation of the contract terms themselves.
However, the opportunity to use adjudication to decide these non-monetary disputes does not mean that doing so is advisable. An adjudicator cannot enforce his decision, as that would be solely a matter for the courts, and there is a history of judgments from the Technology and Construction Court (TCC) which suggest that the TCC is not willing to perfect flawed adjudication decisions. Should a party wish to enforce an adjudication decision in the TCC, they ordinarily do so (in the interests of both speed and economy) through summary judgment. This means that, by definition, the court does not have the power to examine the merits of the decision taken by the adjudicator, but merely to enforce it. A recent example of this that I have been involved with is an adjudication brought by an employer seeking contractual documents from a contractor. The adjudicator decided that the employer was entitled to the documents sought, but did not decide that the documents should be handed over. The employer sought the assistance of the TCC in enforcing the decision, and the TCC confirmed the employer's right to the docu-ments. However, the TCC was not willing to overstep the adjudicator and order that the documents be deliv-ered.
This is yet another example demonstrating that, while adjudication is appropriate for resolving payment dis-putes during the lifetime of the project, it has its limitations in other contractual areas. For non-monetary dis-putes, a claimant may be better advised to make a Pt 8 application to the TCC seeking a declaration con-firming the correct contractual interpretation or an order concerning non-monetary relief. This was the ap-proach taken by the claimant in Transport for Greater Manchester v Thales Transport & Security Ltd  EWHC 3717 (TCC), where the claimant sought inspection of certain documents. When a claimant seeks documents, particularly in light of Akenhead J's decision in Thales, the documents sought must be properly identified and should be linked to contractual provisions which give rise to a relevant right, such as those concerning auditing.