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In a recent article, Tony Bingham highlighted the perception among users of adjudication that some adjudicators nominated by adjudicator nominating bodies (ANBs) are lacking in competence and produce poor decisions, and that they do not dispel perceptions of bias. Tony asked, 鈥渨hat鈥檚 to be done?鈥� and questioned whether it鈥檚 time to shake up adjudication.

The Technology and Construction Solicitors鈥� Association (TECSA) is an ANB and has a multidisciplinary adjudicator panel. Its panel includes retired Court of Appeal and Technology and Construction Court judges, solicitors, barristers, quantity surveyors, architects, engineers and other industry professionals. According to recent surveys into UK adjudication by King鈥檚 College London, TECSA is the third-ranked ANB, in terms of the number of adjudicator appointments it makes each year.

I am member of TECSA鈥檚 committee, and I sit on its adjudication subcommittee, which deals with its adjudication affairs. I can confirm that we are alive to the concerns raised by Tony and that we have taken and are taking steps to address them.

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In terms of ensuring the competence of TECSA鈥檚 adjudicators, we:

• Publish the names and CVs of our adjudicators on our website (a transparency that we apparently only share with one other ANB, the Institution of Civil Engineers)
• Examine and interview applicants for places on our adjudicator panel (the first such examination and interview process was held last year)
• Invite parties to provide feedback on our adjudicators
• Operate a complaints procedure (although complaints are unusual)
• Require adjudicators to satisfy annual continuing professional development (CPD) criteria and provide CPD returns each year
• Assess our adjudicators about every five years, by moderating redacted directions and decisions, and interviewing them.

If the subcommittee has any concerns about a particular adjudicator, then they can be called in for assessment and interview at any time. Most adjudicators pass the assessments, but occasionally some do not.

TECSA encourages new applicants from all professions to apply for places on its adjudicator panel, but they now have to pass a rigorous exam followed by a testing interview

Tony makes the point that many members of ANB panels may have joined up at the dawn of statutory adjudication in the late 1990s and may be long in the tooth, and that succession is a problem. However, TECSA encourages new applicants from all professions to apply for places on its adjudicator panel, but they now have to pass a rigorous exam followed by a testing interview.

Following our 2024 admission process, 11 candidates made it on to the panel, having surmounted these two hurdles which are designed to test the knowledge of the relevant law as well as adjudication practice and procedure. It is TECSA鈥檚 intention that these exams and interviews will be repeated every year or so.

To assist young adjudicators, TECSA is setting up a scheme where experienced adjudicators will mentor new adjudicators and guide them until they find their feet

Certain applicants who pass the exam and interview may be inexperienced adjudicators and not yet considered ready to hear high-value and complex disputes. They are therefore placed on the list of adjudicators who may deal only with low-value disputes (LVDs) 鈥搕hose involving sums up to 拢100,000 excluding interest and VAT. They are expected to cut their teeth on LVD matters for their first two years.

To assist young adjudicators, TECSA is setting up a scheme where experienced adjudicators will mentor new adjudicators and guide them until they find their feet.

TECSA is aware that its current adjudicator panel lacks diversity, and it is actively encouraging women and members of ethnic minority communities and others with protected characteristics to apply to join its panel. Approximately a third of those on the waiting list for the next exam are women and members of ethnic-minority communities.

To ensure that no perception of bias with our adjudicators arises, those seeking nominations have to provide an undertaking that they will not accept any proposed appointment where they have a conflict of interest

To ensure that no perception of bias with our adjudicators arises, those seeking nominations have to provide an undertaking that they will not accept any proposed appointment where they have a conflict of interest or where they have an involvement, interest, relationship or other connection which might reasonably be perceived to affect their independence or impartiality, having made appropriate enquiries.

TECSA agrees with Tony Bingham that adjudicators should face tough exams and meet continuing training requirements, and it has implemented these steps. It also has other measures in place to ensure adjudicator quality. In addition, it requires undertakings to be given to avoid perceptions of bias.

In TECSA鈥檚 view, ANBs should adopt the best practice as advocated by Tony, and TECSA would welcome a dialogue with other ANBs as to it how can be achieved.

Robert Stevenson is a TECSA committee member and member of its adjudication sub-committee, as well as being a consultant at Russell-Cooke