January Insight: The Adjudication Society & King's College London Report On Adjudication: Thoughts For The Future?

• Published date: 15 February 2023
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Strategy, Industry Updates & Analysis, Arbitration & Dispute Resolution, Knowledge Management, Economic Analysis, Diversity, Equity & Inclusion
• Law Firm: Fenwick Elliott LLP
• Author: Ms Claire King

The Adjudication Society & King's College London Report on Adjudication: Thoughts for the future?

On 3 November 2022, the Adjudication Society & King's College London Report on Adjudication was launched at the Adjudication Society's Annual Conference in Edinburgh (the "Report"). Written by Professor Nazzini and Aleksander Kalisz, the Report provides some of the most comprehensive statistics available on the practise of Adjudication in the United Kingdom.¹ Claire King, the author, had the pleasure of sitting on the Project Steering Committee for the Report.²

In this Insight, we review what the author considers to be the most interesting findings within the Report and asks what they suggest for the future of adjudication generally.³

Overview and general impressions of the process

As noted by Lord Justice Coulson in his Foreword to the Report, "It reveals many attitudes and statistics that support the generally positive view [of Adjudication] to which I have referred." Overall, adjudication comes out of the Report relatively well. For example, there is a general perception of procedural fairness in adjudication. 78% of respondents agreed that adjudicators ensure that the parties are on an equal footing always or most of the time. Only 7% of respondents thought that they do so rarely or never. That is plainly a vote of confidence in the process overall.

There were also low numbers of complaints about adjudicators to the Adjudicator Nominating Bodies ("ANBs"). As recorded in the Report, RICS has the most referrals and (presumably, therefore) the most complaints at 2.5% and 3.2% of total referrals for the year 1 May 2020 to 30 April 2021, and 1 May 2021 to 30 April 2022 respectively. No adjudicators were removed from panels and it is noticeable that some smaller ANBs had no complaints at all.

However, this lack of complaints doesn't sit well with the statistics in relation to the suspected bias of adjudicators, themselves subject to some debate, as to which, see further below.

The slip rule also seems to be working relatively smoothly. Generally, "slips" are picked up by the parties rather than the adjudicator, which is perhaps unsurprising:

They are then corrected by the adjudicator once raised (as to which, see below).

Finally, the statistics in relation to judgments published by the TCC (High Court) since 2011 demonstrate that the Courts have generally taken a robust approach towards enforcement. The vast majority of decisions are enforced. That said, summary enforcement was declined in 21% of cases handled by the TCC (High Court). As summarised in the Report: "Jurisdictional objections defeated 9.5% of enforcement applications, whilst natural justice defeated 4.8%. In a further 2.1% of cases, a combination of both jurisdiction and natural justice allegations defeated enforcement."⁴ Other grounds included insolvency (4.8% of cases).

Apparent Bias of Adjudicators

One of the most headline-grabbing findings (and one that is picked up on by Lord Justice Coulson in his Foreword to the Report) relates to apparent bias of adjudicators. The Report itself found that adjudicators very rarely voluntarily disclose any information, facts or circumstances that might give rise to the appearance of bias in the eyes of the parties. This is shown in the figure below.

The question then becomes one of whether this is simply because it rarely, if ever, occurs that an adjudicator has anything at all to disclose. The...