LLM228 Adjudication Law, Practice and Procedure

Insights from Practice

Guest Speaker: Scott Johnston, Pinsent Masons
• Partner, Pinsent Masons
• Qualified in Scotland, England and Australia (New
South Wales)
• Ranked among leading construction lawyers in
Scotland
• Been doing adjudications since (almost) the beginning

• Welcome back!
Insights from Practice – why update now?
• 2014 Adjudication practice, tactics and psychology…still holds
good in 2021
• But some things have changed…(beyond the reconfiguration of
RGU Module!)
• First up: UK case law (briefly):
• Easier for liquidators to adjudicate (at least in England) – Bresco
v Lonsdale (2020)
• Law evolved on “smash and grab” adjudications (S&T v Grove
(2018); Davenport v Greer (2019) etc.)
Trend (1): Increased use of Witness statements
• Witness Statements: role to play, but remember:
“…the purpose of the witness statement is in this context is to say, so far as the witness can say what happened, what the witness says he or
she did, what he or she knew or thought or believed or intended, or, the meaning or content of documents to which they were a party where
they can comment properly about them and where the meaning or content of that document has been called into question. Beyond that, they
should not go. “ (PCP v PCP Capital (2020))

• Witness evidence less likely to be rigorously challenged in Adjudication (cf court)

• Misuse/abuse of statements:
• Unhealthy for the process
• Expense and possible tactical weapon
• English courts:2021 reform on statements (Practice Direction, Statement of Best Practice)
• Explicit constraints: statement content, mode of preparation, argument, opinion
• Aim: reduce over-lawyering and spin (get to truth), and cost
• Adjudication interface?
• Not directly applicable but may change attitudes?
• More discipline, care in preparing statements, content? Less misuse?
• Costs saved?
Trend (2): Fewer Meetings? (Or at least different types)
• More documents-only adjudications than in past; less
meetings “by default”
• Adjudicator discretion…but propelled by natural justice
caution; wary of uncontrolled new evidence spills at large
meetings…?
• More meetings with focused and issue specific aims…? (see
next topic)
Trend (3): Impact of Technology – and the pandemic
• Adjudication: held up well during the Covid era
• Document Management:
• Soft v hard copies
• Document transmittal modes (electronic)
• Video/virtual tech (Teams, Zoom, Skype, WebEx)
• New tech hasn’t stymied meetings…but more focused, issue-centric
meetings, with fewer people? “Inquiry creativity” supported?
• Tech can help with attention to documents and adjudicator queries?
Trend (4): Dispute Types…Defects
• Many more disputes on defects – and not just in adjudication
• Particularly on PFI/PPP projects…?
• Why?
• Ageing infrastructure
• Possible capex savings strategies
• Skills shortages or underpriced work coming home to
roost?
• Means more adjudications turning on expert reports
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