TeCSA

TECHNOLOGY AND CONSTRUCTION SOLICITORS ASSOCIATION

www.tecsa.org.uk

ADJUDICATION SERVICE

CONTENTS
Clause Heading Page
1 INTRODUCTION 3
2 OVERRIDING OBJECTIVE 3
3 THE ADJUDICATOR LIST 3
4 APPOINTMENT PROCESS 3
5 ADJUDICATOR REQUIREMENTS AND ASSESSMENT PROCEDURE 3
6 FEEDBACK FROM USERS/ADVERSE JUDICIAL CRITICISM 4
Appendix 1 – TeCSA Adjudicator Undertaking 5
Appendix 2 – Requirements for TeCSA Adjudicators’ Continuing Professional Development 7
Appendix 3 – TeCSA Adjudicator Assessment Procedure 10

Appendix 4 – TeCSA Adjudicator Appeals Procedure………………………………………………14

Schedule 1 – Criteria for assessment of the Decision 15
Schedule 2 – Relevant Criteria for Assessment of the Adjudicator at Interview 18
Schedule 3 – Adjudicator Assessment Report 20

1 INTRODUCTION
This document sets outs the Adjudication Service offered by TeCSA and the requirements for TeCSA Adjudicators.
2 OVERRIDING OBJECTIVE
The overriding objective of the TeCSA Adjudication Service is to promote high quality dispute resolution processes to the construction, engineering and technology industries. 
3 THE ADJUDICATOR LIST
In its capacity as an Adjudicator Nominating Body, TeCSA maintains a List of Adjudicators (the “Adjudicator List”).
4 APPOINTMENT PROCESS
4.1 A party wishing TeCSA to make an adjudicator appointment should complete the application form and send it, with the applicable fee, to the TeCSA Committee Chairman (The “Chairman”). The form is available on the TeCSA website. 
4.2 The application should identify the preferred discipline and the subject matter of the dispute. The Chairman, or such other member of the TeCSA Committee as he shall nominate as his alternate (the “Alternate”) will review the application and any accompanying paperwork to check that it has been issued in sufficient time to permit an appointment to be made. Subject to that, the Chairman/Alternate in his absolute discretion will appoint such adjudicator from the Adjudicator List as to the Chairman/Alternate appears appropriate, having regard to, inter alia:
• the subject matter of the dispute;
• the professional discipline and office location of the proposed adjudicator;
• the location of the parties; and
• in the case of more than one dispute concerning the same project, whether it is desirable that the same adjudicator be appointed.
5 ADJUDICATOR REQUIREMENTS AND ASSESSMENT PROCEDURE
Each adjudicator on the Adjudicator List shall:
(a) Give the undertaking in the form attached at Appendix 1 (as amended from time to time) (“the TeCSA Adjudicator Undertaking”);
(b) Undertake the Continuing Professional Development required by TeCSA from time to time. TeCSA’s current requirements are set out in Appendix 2 attached (“the Requirements for TeCSA Adjudicators’ Continuing Professional Development”);
© Be regularly and independently assessed in accordance with the requirements of TeCSA from time to time. TeCSA’s current requirements are set out in Appendix 3 attached (“the TeCSA Adjudicator Assessment Requirements”).
6 FEEDBACK FROM USERS/ADVERSE JUDICIAL CRITICISM
6.1 The Chairman will routinely invite feedback from parties by way of a questionnaire. The Chairman may investigate any adverse feedback received (whether in response to any questionnaire or otherwise), and/or any adverse judicial criticism made and known to TeCSA, concerning any adjudicator. 
6.2 The Chairman will provide any feedback received and/or any adverse judicial criticism made about an adjudicator to the Assessors appointed in accordance with the TeCSA Adjudicator Assessment Procedure. 
6.3 Following his investigation the Chairman may in his absolute discretion decide that any adverse feedback and/or adverse judicial criticism concerning any adjudicator gives sufficient grounds to institute an Ad Hoc Assessment under the TeCSA Adjudicator Assessment Procedure.
6.4 Any Adjudicator who is the subject of any adverse criticism shall be given an opportunity to comment on the information provided to the Assessors appointed in accordance with the TeCSA Adjudicator Assessment Procedure. 
.

Appendix 1
TeCSA Adjudicator Undertaking
I acknowledge that, I have been assessed by TeCSA as suitable to receive appointments made by the Chairman. I shall: 
1 Ensure that I or my firm maintain the necessary and appropriate professional indemnity insurance cover for my work. I confirm I will not accept appointments or undertake such work if I do not have such cover.
2 Respond in good time to the Chairman / Alternate when offered appointments. I recognise that if I take longer to respond than required by the relevant contract, or a time stated by the Chairman / Alternate in his invitation, whichever is the shortest, the Chairman / Alternate may offer the appointment to another person without contacting me. I also recognise the need to perform any duties in relation to disputes within appropriate timescales.
3 Have appropriate methods of email communication available for all communication with TeCSA. I will normally use email to communicate with TeCSA unless the system is temporarily out of use at either end. 
4 Conduct the Adjudication in accordance with whatever rules are applicable under the relevant contract.
5 Complete and return to TeCSA, timeously on completion of each reference, the TeCSA ‘Adjudicator’s Case History Form’
6 Comply with TeCSA’s Adjudication Assessment Procedures from time to time notified to me. 
7 Keep TeCSA informed about any changes to the geographical and sectoral areas of my skills/work for future appointments and keep my CV up to date. 
8 Disclose any conflict of interest in relation to any proposed appointment. I shall also disclose any matter affecting any special requirement indicated in details provided by TeCSA, details of any other past or existing appointments, or issues that I know may arise during my appointment or in the future, which might have an impact on the appointment. 
9 Ensure that my fees shall not exceed the rate of £1,750 per day plus expenses and VAT and shall not require any advance payment of or security for my fees.
I recognise I have a duty to uphold the appropriate professional and personal standards appropriate to enable the Chairman / Alternate from time to time to have confidence in making appointments. 
I recognise I must notify TeCSA of any occasion where I have been the subject of judicial comments/criticism. I also undertake to co-operate with any complaints procedures TeCSA puts in place from time. 
I recognise that membership of the TeCSA List of Adjudicators does not guarantee a quota of (or any) appointments. 
In signing and returning this document I confirm my ongoing commitment to all of these matters without the need to make further declarations to TeCSA other than when requested specifically by TeCSA to do so.
Signed : …………………………………………….

Date : ……………………………………………….

Appendix 2
Requirements for TeCSA Adjudicators’
Continuing Professional Development (“CPD”)

1 INTRODUCTION
1.1 TeCSA keeps a list of adjudicators (the “Adjudicator List”) who are qualified by training and experience to undertake adjudications. It is important that those included on the Adjudicator List maintain their knowledge and experience and keep up to date with developments in the law affecting adjudication. Also, it is essential for the wellbeing of the adjudication process, as well as for the reputation of TeCSA, that it maintains the highest quality of adjudication expertise.
1.2 In order to achieve these objectives TeCSA requires a minimum level of CPD to be undertaken by adjudicators wishing to remain on the Adjudicator List. All adjudicators are required to make annual returns relating to the period from 1 August to 31 July, detailing:
• their experience acting as adjudicator;
• their experience of advising a party, representing a party and/or in pupillage in adjudication; and
• other appropriate education and training undertaken.
1.3 The level of CPD required for adjudicators is intended to reflect the knowledge and experience needed to successfully undertake the role of adjudicator. Adjudication can contribute considerably to the resolution of disputes without resort to arbitration or litigation. It can only do this successfully if those who serve as adjudicators are capable of delivering consistently high quality decisions.
2 CPD REQUIREMENTS
2.1 The minimum amount of CPD that each adjudicator is required to undertake each year is 24 hours, of which: 
• a minimum of 8 hours must consist of practical adjudication experience; and
• a minimum of 16 hours must consist of other appropriate CPD elements.
2.2 Practical adjudication experience will consist of:
(a) acting as adjudicator in disputes for which CPD will be awarded as the number of charged hours spent up to a maximum of 8 hours per adjudication; and
(b) advising and/or representing a party in adjudication for which CPD will be awarded as the number of charged hours spent up to a maximum of 4 hours per adjudication; and
© pupillage.
2.3 Other appropriate CPD elements consist of:
(a) Courses on adjudication.
(b) Attendance at adjudicator workshops or surgeries.
© Attendance at meetings/workshops on legal updates.
(d) Lecturing on adjudication including preparation.
(e) Technical authorship on adjudication.
(f) Service on committees or panels concerned with adjudication.
2.4 At least 6 hours must be spent on 2.3(a) and/or 2.3(b) in any year.
3 ASSESSMENT
3.1 Annual returns are assessed each year by the Adjudication Review Panel (“ARP”) appointed by the Chairman of TeCSA from time to time. In addition, adjudicators will be formally assessed at least every 5 years (see the TeCSA Adjudicator Assessment Procedure). 
3.2 The ARP will investigate the reasons why any adjudicator’s CPD does not meet the requirements and seek the reasons for the shortfall. If the ARP does not receive satisfactory explanations and is concerned about the TeCSA adjudicators’ CPD and/or his ability to carry out the role of adjudicator satisfactorily then the ARP may remove his/her name from the Adjudicator List.
4 GENERAL AND ADMINISTRATION
4.1 Annual returns, as described in paragraph 1.2 above, are to be made on the forms provided by TeCSA from time to time. The returns will normally be sent out at the end of September each year. Time claimed as CPD experience should not be duplicated under the various categories.
4.2 Adjudicators are also required to update their CV published in the Adjudicator List to keep up with their current employment and reflect increased experience and responsibilities. The Adjudicator List will normally be updated in January and published on the TeCSA website.
4.3 An annual fee of £300, is payable to cover the costs of adjudicator assessments, including the annual CPD returns, and updating the Adjudicator List. Invoices will normally be sent out in December when members are asked to update their CVs. Failure to pay the annual fee or submit the annual CPD returns following a reminder may be treated by TeCSA as constituting resignation from the Adjudicator List.
4.4 All enquiries concerning CPD or further information on adjudication and admission to the Adjudicator List should be directed to:

Chairman of TeCSA
Simon Tolson
Fenwick Elliott
Aldwych House
71-91 Aldwych
London
WC2B 4HN

Further information can also be obtained
by visiting the TeCSA website at www.tecsa.org.uk

Appendix 3

TeCSA Adjudicator Assessment Procedure

1 INTRODUCTION
1.1 TeCSA has introduced an assessment procedure for adjudicators, commencing in 2011. The assessment will include the review of a (redacted) reasoned decision made by the adjudicator and an interview, as described below.
1.2 Reference in this document to the masculine includes the feminine and vice versa.
2 THE PROCEDURE
2.1 The aim of the assessment procedure is to maintain the high standards expected of TeCSA as an Adjudicator Nominating Body (“ANB”) in regard to:
(a) the conduct of adjudications; and
(b) written decisions.
2.2 Save in the case of an Ad Hoc Assessment (see section 3 below), generally all adjudicators on TeCSA’s Adjudicator List (the “Adjudicator List”) will be assessed once every five years by rotation. The names of those to be assessed in each year will be selected by the Chairman of TeCSA in his absolute discretion.
2.3 The assessments will be carried out by 3 assessors (the “Assessor(s)”) [comprising at least one member of the TeCSA Committee plus 2 others appointed by the Chairman]. 
The appointment of the Assessors
2.4 TeCSA will write to each adjudicator to be assessed in the relevant year at the same time as the CPD annual return forms are requested, usually in September. The names of the proposed Assessors will be notified to the adjudicator to check for any conflict of interest. In the absence of any conflicts of interest, the Chairman in his absolute discretion will appoint the Assessors. The Assessor who is also a member of the TeCSA Committee will act as chairman of the Assessors. 
Submission of the redacted decision
2.5 The assessment will be conducted on the basis of a redacted reasoned decision made by him in the previous 2 years (the “Decision”) in which:
(a) The names of the parties are to be blanked out in order to preserve anonymity;
(b) Any other text, such as a specific site name or location, likely to identify the parties should also be blanked out;
© In the alternative, fictitious alternatives can be substituted for the real names/locations.
2.6 The adjudicator will submit the Decision to the chairman of the Assessors. No further documents used in the adjudication should be submitted. The Assessors and TeCSA undertake not to disclose any details of the Decision to any third party.
2.7 It is not the role of the Assessors to review the merits of the Decision. TeCSA is looking to ensure that decisions are presented in a professional, logical and understandable manner. The assessment criteria to be followed in reviewing the Decision are set out in Schedule 1 to this document. 
Procedure where no decision in the last 2 years
2.8 If the adjudicator has not made a decision within the previous two years he will be asked to explain why, with reasons, and submit a decision made within the previous five years. In the unlikely event that he has not made such a decision, he will again be asked to explain why, with reasons. Following their review of the reasons given by the adjudicator, the Assessors will:
Either
(a) Agree that a decision made otherwise than within the previous 5 years shall constitute the Decision for the purposes of this TeCSA Adjudicator Assessment Procedure;
Or
(b) Recommend to TeCSA that the adjudicator’s performance overall in the review shall be deemed to be “Not satisfactory” and that the adjudicator’s name should be removed from the Adjudicator List.
2.9 Should TeCSA decide to remove the name of an adjudicator from the Adjudicator List he will be so informed as soon as possible. 
The Interview
2.10 Following their initial assessment of the Decision, the Assessors will arrange an interview with the adjudicator lasting approximately 1 hour. The Chairman of TeCSA will provide to the Assessors in advance of the interview a history of any upheld TeCSA complaints, judicial criticisms known to TeCSA and any feedback received by TeCSA from the parties to any adjudication following an appointment, about the adjudicator over the period since the last review or entry onto the Adjudicator List, as appropriate. 
2.11 At the interview the Assessors will raise points arising from their review of the Decision and any other matters that will enable them to assess the strengths and weaknesses of the adjudicator for the purpose of the assessment. Criteria to be considered during the interview process are set out in Schedule 2 to this document.
2.12 On completion of the interview the Assessors will complete and forward to the Chairman of TeCSA an Adjudicator Assessment Report, to be signed by all three Assessors, as shown in Schedule 3 to this document. The chairman of the Assessors will set out the consensual and/or majority view as to whether the adjudicator’s overall performance, including during the interview and the drafting of the Decision, is “Satisfactory” or “Not Satisfactory”. Where appropriate, the chairman of the Assessors will set out the consensual and/or majority view as to the recommended appropriate action to be taken if the adjudicator is assessed as “Not Satisfactory”.
2.13 The Chairman of TeCSA will consider the Adjudicator Assessment Report and either:
(a) accept an adjudicator’s performance overall in the review as “Satisfactory” and inform the adjudicator accordingly; or
(b) accept that it was “Not Satisfactory” and inform the adjudicator accordingly, enclosing a summary of the reasons provided by the Assessors, and ask the adjudicator to comment.
2.14 TeCSA will consider the adjudicator’s response to its request for comment and decide whether to:
(a) accept the adjudicator’s response and inform him that his explanation has been accepted. TeCSA may still require the adjudicator to take due account of the Assessors’ comments in the future conduct of adjudications; or
(b) reject the adjudicator’s response and propose to the adjudicator that he should attend further training, submit a written decision on a Case Study, undertake pupillage or take some other remedial action (requiring evidence of such) during a temporary period of suspension from the Adjudicator List; or
© reject the adjudicator’s response and remove his name from the Adjudicator List.
2.15 TeCSA will not normally nominate any adjudicator whose performance has been assessed as “Not Satisfactory” until the next stage of the review process has been satisfactorily completed.
2.16 All assessments will remain strictly confidential to the adjudicator, the Assessors and TeCSA. Assessments will not be available to any other person or body.
3 AD HOC ASSESSMENT
3.1 TeCSA may also institute an Ad Hoc Assessment of an adjudicator at any time where:
(a) TeCSA upholds a serious complaint made about an adjudicator;
(b) The adjudicator is the subject of judicial criticism which in the opinion of the Chairman is such as to warrant an Ad Hoc Assessment;
© The Chairman in his absolute discretion decides that any adverse feedback received concerning an adjudicator gives sufficient grounds to institute an Ad Hoc Assessment.
3.2 The procedure for such Ad Hoc Assessment will be the same as for the normal 5 yearly assessment.

Appendix 4
Appeals: TeCSA Adjudicator Appeals Procedure

4.1 The decision of TeCSA in respect of the review is binding until and unless overturned on appeal in accordance with TeCSA’s Adjudicator Appeals Procedure from time to time in force.
1 Introduction
1.1 The aim of this appeals procedure is to determine any appeals resulting from:
(a) any Ad Hoc Assessment pursuant to paragraph 3.1 of the TeCSA Adjudication Assessment Procedure (the “Procedure”);
(b) any assessment made pursuant to paragraphs 2.8 (b), 2.13 or 2.14 of the Procedure;
(collectively an “Assessment”). 
2 APPEALS process
2.1 An adjudicator who is dissatisfied with the outcome of any Assessment (the Appellant”) may appeal by written notice (the “Appeal Notice”) to the Chairman of TeCSA. Such written notice must be received by the Chairman within 28 days of the Assessment. 
2.2 Following receipt of a valid Appeal Notice, the Chairman of TeCSA will appoint an Appeal Committee comprising two members of the TeCSA Committee plus the Chairman of TeCSA as chairman of the Appeals Committee (the “Chairman”). 
2.3 The Appeal Committee shall have access to all of the information provided on the Assessment but will consider the Assessment de novo. The Chairman shall convene an appeal hearing at which the Appellant shall be entitled to appear and make representations as to matters relevant to the Assessment. 
2.4 Within 14 days of the completion of the appeal hearing, the Chairman will notify the Appellant in writing of the Appeal Committee’s decision. Such decision shall either:
(a) Confirm the original Assessment; or
(b) Substitute a revised Assessment;
in accordance with the Procedure.
2.5 The decision of the Appeal Committee shall be final and binding. There will no further appeal from a decision of the Appeal Committee.

Schedule 1
Criteria for assessment of the Decision
1 The style and presentation of a written decision will vary between adjudicators, but certain information should always be included unless compelling reasons dictate otherwise. The Decision should be reviewed by the Assessors under three headings, as follows:
Content
2 The content of the Decision will be dictated by, amongst other things, the type, complexity and number of the issues, the extent and nature of the evidence and the personal style of the adjudicator.
3 The reiteration of evidence and the arguments of the parties should be limited to the extent that is necessary to enable the parties and any third party such as a judge, to understand how the adjudicator reached his conclusions. The parties are already aware of each other’s submissions.
4 There should be sufficient commentary to indicate to the parties and any independent third party how the adjudicator has reached the Decision. The reiteration of party submissions on a “cut and paste” process alone does not constitute reasons without further explanation.
5 Whatever is written should be set down in an orderly and logical sequence. If there is more than one issue or group of issues the evidence and argument relating to each and the conclusion reached should be separately identified.
6 Conclusions reached in the body of the Decision may in fact be the adjudicator’s decisions on the various issues but these should be collected and reiterated where appropriate. It can be confusing for decisions on the various issues to be scattered throughout the Decision.
7 Any requirement for either party to do something should be accompanied by a timescale.
8 Sums of money are generally exclusive of VAT and this must be stated and explained if appropriate. Interest should be dealt with, if it has been raised by either party. The adjudicator’s costs must be allocated, bearing in mind anything set down in the relevant adjudication procedure or rules. The matter of the parties’ costs must also be addressed, if it has been raised by either party. The Decision must be signed and dated.
9 In summary, the content of the Decision should generally and ideally include/ or refer to:
Introduction
(a) The parties’ details;
(b) Representatives of the parties;
© Contract and Contract Conditions;
(d) Contract adjudication procedure or Scheme;
(e) Date of Notice of Adjudication;
(f) Method of nomination/appointment and date of acceptance by the adjudicator;
(g) Issues referred and redress sought;
(h) Date of Referral; and
(i) Date for Decision
Jurisdiction
(a) Details of any challenge to jurisdiction;
(b) Response from the other party; and
© Adjudicator’s conclusion on jurisdiction.
The Adjudication Process
(a) Dates of Response & any Reply;
(b) Date of any meeting;
© Details of any information obtained through direct contact with either party or a third party;
(d) Details of any extension of time for making the Decision; and
(e) Details of any particular procedural problems.
Decision
(a) Decision on all matters referred;
(b) Set out the issues logically;
© Apply the evidence to determine findings of fact;
(d) Apply the law to the facts;
(e) Set out conclusions for each matter referred; 
(f) Set out any declaration and/or who pays what to whom and when; and
(g) Signature and date of the Decision;
Presentation
10 The Decision should be set down tidily in a professional manner and should flow logically. It should be grammatically correct, free of clerical errors and free of clerical inconsistencies such as haphazard use of upper and lower case and paragraph errors. It should clearly identify the parties.
11 Repetition should be avoided except to the extent that it is necessary for understanding or clarity. The Decision should not be written on company headed paper with the company or partnership logo.
12 Paragraphs should be numbered and section headings used throughout the Decision to aid the reader in finding his way around the document.
Overall Quality
13 Before completing the Report for submission to TeCSA the Assessors should check as far a possible:
(a) Have all the matters referred been decided?
(b) Have any matters not referred been decided?
© Has all evidence and argument submitted been properly considered?
(d) Has all evidence and argument used been reviewed by both parties?
(e) Are the conclusions justified by the evidence and argument?
(f) Do the decisions follow logically from the conclusions?
Report
14 The Assessors shall assess the Decision referred to them using the guidelines set out above

Schedule 2
Relevant Criteria for Assessment of the Adjudicator at Interview
To be assessed as competent to remain on the Adjudicator List an adjudicator must demonstrate to the Assessors that he satisfies the criteria laid out in this Appendix.
The Adjudication Process
1 The ability to deal effectively with both threshold and subsequent jurisdictional problems and challenges. This requires a clear understanding of the criteria to be considered when determining whether and how to proceed and the need to communicate clearly to the parties any jurisdictional determination.

2 Awareness of the need to operate within the boundaries of natural justice commensurate with the context of adjudication. There must be an understanding of the overriding importance of fairness in allowing parties to present their cases.
3 Awareness of the risks of both real and apparent bias and the steps that could be taken to avoid reasonably foreseeable difficulties.
4 A knowledge of relevant substantive law, particularly in respect of contract, tort, evidence and legislation sufficient to understand the context of legal arguments, so that a rational and reasoned decision can be made.
5 The ability to identify, express and analyse the issues and sub-issues that need to be considered in reaching a decision.
6 The ability to manage and control the process.
7 The ability to apply judgemental skills throughout the process.
8 The ability to provide concise, clear and logical reasons for a decision.
9 The ability to manage the adjudication in a transparent, efficient and expedient manner.
10 The ability to communicate a decision in a structured, fluent and logical fashion Professional engagement since the previous review
11

12 Continuing active involvement in construction dispute resolution in general since the last review or entry to the Adjudicator List as appropriate (the “previous period”).
Active involvement in relevant CPD, taking into account any TeCSA Committee comments in respect of such over the previous period. Previous upheld complaints or judicial criticism
13 Acceptable performance in the carrying out of adjudications, taking into account any upheld TeCSA complaints and/or judicial criticism of the adjudicator in the previous period.

Schedule 3
Adjudicator Assessment Report

Assessors’ Names [Chairman]

Adjudicator’s TeCSA Assessment Reference Number
Date referred to the Assessors by TeCSA
1 This Report is an assessment by the Assessors named above of the Decision presented by the above referenced adjudicator to TeCSA for assessment as part of the review of members of the Adjudicator List. The Assessors shall complete the following table and conclude their assessment with a declaration as to whether they consider it to be “Satisfactory” or “Not Satisfactory”, using the guidelines laid down from time to time by TeCSA as summarised in Appendix 1 of the Procedure. Satisfactory Unsatisfactory
Content
Presentation
Overall Quality

Overall

2 This Report also covers the assessment of the adjudicator’s performance over the previous period following an interview held on [ ] and covering the criteria set out in Appendix 2 of the Procedure
3 In the event of a “Not Satisfactory” assessment the Assessors shall set out their reasons for so concluding on the attached sheet.
4 When completed they shall return the Decision and their Report to reach TeCSA by (date to be completed by TeCSA)
Assessors’ Declaration
Having reviewed the Decision and interviewed the adjudicator we consider the adjudicator’s performance over the period to be:
Satisfactory / Not Satisfactory (strike out as appropriate)
Where we have assessed it as Not Satisfactory we set out our reasons and recommendations overleaf:
Assessors
Name Name Name
Signature Signature Signature
Date Date Date

Reasons for assessment if Not Satisfactory:

Recommendations: