MCMS Blog

Matt Molloy and Jonathan Cope give an adjudicator's opinion on disputes and dispute avoidance in the construction and engineering sectors.

Disclosure in adjudication after Walter Lilly v Mackay

Posted by MCMS on 10th April 2012.

Jonathan Cope, director:

In my last blog I talked about Walter Lilly & Company Ltd v Giles Mackay and DMW Developments Ltd, where Akenhead J found that advice given by claims consultants does not attract legal professional or legal advice privilege

That got me thinking about disclosure and privilege in adjudication proceedings. Disclosure requests are certainly something I’m seeing more and more of, so I thought it would be useful to set out my thoughts on the subject.

Disclosure in adjudication

An example of such a disclosure request might be:

“We are aware that party X took numerous photographs during the course of the works, however these have not been included in the Referral. The photographs are relevant to the dispute referred because [set out reason(s)] and we therefore ask you to direct that copies of the photographs are provided.”

When an adjudicator is dealing with such a request, the first important point to remember is that the Civil Procedure Rules (CPR) obviously don’t apply to adjudication. The parties are therefore not obliged to disclose all the documents on which they intend to rely and those that adversely affect their case, or to allow inspection of those documents.

However, an adjudicator might nevertheless be able to deal with such a request. Paragraph 13 of Part 1 of the Scheme for Construction Contracts 1998 gives an adjudicator wide powers:

“The adjudicator may take the initiative in ascertaining the facts and the law necessary to determine the dispute, and shall decide on the procedure to be followed in the adjudication. In particular, he may –

(a) request any party to the contract to supply him with such documents as he may reasonably require…”

So, if a party makes an application for disclosure of particular documents and the adjudicator is content that he may “reasonably require” those documents in order to reach his decision, the adjudicator can direct that the other party provides the documents. In a similar manner to the Arbitration Act 1996, the adjudicator can draw adverse inferences if, “without showing sufficient cause”, the other party fails to provide such documents. However, in my view, the adjudicator needs to tell the party in advance if he is going to take such an adverse inference.

Adjudicators should also be mindful that:

  • In a similar manner to litigation, they should decline requests that are too imprecise and merely constitute “fishing expeditions”. For example, I’ve declined to direct that a party provides “all documents relating to the extension of time and loss and expense claims“.
  • Adjudications have a short timetable, which can only be extended in limited circumstances. Therefore they need to balance the need for production of the documents and surrounding natural justice issues on the one hand, with timetabling issues on the other.

Privilege in adjudications

So, could Walter Lilly have an affect on disclosure requests in adjudications? My view is that, in principle it could, but in practice, I very much doubt it.

It is arguable that one party could ask for disclosure of the advice provided by the other side’s claims consultant which wasn’t in connection with the adjudication proceedings, or even advice in connection with the adjudication proceedings if litigation privilege doesn’t apply. However, I’m struggling to think of any circumstances in which the adjudicator might “reasonably require” such advice in order to reach his decision. 

I also think that it is unlikely that any adjudication enforcement cases will ever have to deal with the issue of disclosure in adjudications, however some guidance might be useful. Perhaps this is something for the third edition of Coulson on Construction Contracts?

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