MEETINGS AND HEARINGSin Adjudication

John Redmond

DON’T!

But if you must…………..

Meetings and Hearings in Adjudication

HGCRA s 108(2)

The Contract must enable the Adjudicator to take the initiative in ascertaining the facts and the law

But how?

The Statutory Background

Examples

(c) Meet and question any of the parties to the contract and their representatives

(d) Subject to obtaining any necessary consent from a third party, make such site visits and inspections as he considers appropriate, whether accompanied by the parties or not.

But note:

Scheme, para 13

The adjudicator is required to

Avoid incurring unnecessary expense

Scheme para 12 (b)

• The Preliminary Directions Meeting• The Site Visit• The Adjudicator’s Inquiry• The Hearing

4 types of meeting

Objectives:

• To clarify the issues in dispute• To resolve jurisdiction points• To establish the timetable

Particularly useful if one party is a newbie

Preliminary Directions

An expensive luxury

If there is to be one, be clear about

• What are the relevant issues?• What do you really want to see?• Who needs to be there?• Who should not be there?

Prepare, list, check

The Site Visit

Never appropriate in adjudication

Remember how long trials take

Adjudication is not arbitration or litigation – it is not the final answer

Evidence under oath? Remember the Legal Services Act

The Full Hearing

Leggatt J in Gestmin SGPS v Credit Suisse [2013] EWHC 3560 (Comm):

“…the best approach….is…to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.”

The Full Hearing

Never hold a meeting without good reason

because:

• Cost• Things can go wrong

The fact that one party asks for a meeting is not a good reason

The Meeting or Adjudicator’s Inquiry

The Meeting

Book early!

Allow time in the timetableFix a date even if a meeting is

unlikelyRemember to cancel it

The Meeting

Keep Control Set an agenda Keep to itPrepare

Know what the submissions say about the agenda points

Know who the relevant witnesses are and what they say in their statements

The Meeting

Control discussion

Discussion can be informativeAllow commentBut say when you have heard enough

StyleYour choice – but choose

The Meeting

Keeping a note ManuscriptLaptopClerk

Avoid further submissions

The Meeting

A meeting with the technical experts

All the above apply!

The Hot Tub