The Restriction On The Right Of A Party In Adjudication Proceedings To Be Represented By A Representative Of Its Choice

By Datin Chu Ai Li, Partner, Azman Davidson & Co.

The Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) introduced a new procedure for resolution of claims in the construction industry, i.e. CIPAA adjudication. It was recognised that “(t)he intention of Parliament was to make the procedure and proceedings in Adjudication as simple as possible and to ensure that it, being a speedy mechanism to dissolve disputes that has only the effect of temporary finality, does not become unduly convoluted and cumbersome. This can be seen in the fact that under section 8(3) CIPAA a party to the adjudication proceedings may represent himself or be represented by any representative appointed by the party.” (refer to Tidalmarine Engineering Sdn Bhd v Conlay Construction Sdn Bhd and another appeal [2017] MLJU 738, para. [35]).

Section 8(3) of CIPAA provides as follows (emphasis mine):

“(3) A party to the adjudication proceedings may represent himself or be represented by any representative appointed by the party.”

Section 8(3) CIPAA connotes that a party to CIPAA adjudication proceedings has the right to either represent himself or be represented by any representative of his choice.  It is a common practice for the parties in CIPAA adjudication proceedings to appoint persons such as lawyers, construction professionals and claim consultants to represent them in the adjudication proceedings. 

However, in the recent case of Tekun Cemerlang Sdn Bhd v Vinci Construction Grands Projets Sdn Bhd [2021] MLJU 466, the learned High Court Judge stated that Section 8(3) of CIPAA “only gives liberty for a party to choose between self-representation or to be represented by another in the adjudication proceedings” and did not give a party to CIPAA adjudication proceedings a right to appoint whosoever for representation in adjudication proceedings (refer to paragraph 64 of the judgment).  The High Court Judge held that Section 8(3) of CIPAA did not give a party a right to representation by another person which is prohibited by laws (refer to paragraph 65 of the judgment). 

In the case of Tekun Cemerlang, the parties to the adjudication proceedings were the employer and the main contractor of a project in Tuaran, Sabah. The employer, Tekun Cemerlang Sdn Bhd, is a company with registered and business addresses in Kota Kinabalu, Sabah. The main contractor, Vinci Construction Grand Projets Sdn. Bhd. is a company with a registered address in Kuala Lumpur. The main contractor appointed Messrs. Gananathan Loh, a legal firm based in Kuala Lumpur, to be its representative in the adjudication proceedings it commenced against the employer. The Asian International Arbitration Centre (AIAC) appointed Miss Catherine Chau, a lawyer based in Kota Kinabalu, Sabah, as adjudicator in the adjudication.

The learned Judge in Tekun Cemerlang held that Section 8(3) of CIPAA did not give Messrs. Gananathan Loh the right to act as advocates and to represent the main contractor in the adjudication in Sabah in abrogation of the right conferred upon advocates under the Advocates Ordinance (Sabah Cap. 2) (refer to paragraph 66 of the judgment).  

The judge’s decision was based on the fact that Messrs. Gananathan Loh were not admitted and enrolled to practise as advocates in Sabah under the Advocates Ordinance of Sabah. Section 8(1) of the Advocates Ordinance gave exclusive right to only advocates admitted and enrolled under the ordinance “to practise in Sabah” and to appear and plead in courts in Sabah. Section 2 of the Advocates Ordinance defines the term “to practise in Sabah” as “to perform in Sabah” the functions which may be performed by barristers and solicitors in England and any functions authorised by the ordinance.

Although Messrs. Gananathan Loh were not physically present in Sabah for the adjudication proceedings but had merely prepared the adjudication claim for the adjudication proceedings in their office in Kuala Lumpur and had submitted the adjudication claim to the adjudicator from there, the learned judge held that Messrs Gananathan Loh had been practising in Sabah in the adjudication proceedings for purposes of the Advocates Ordinance. The learned judge stated that the reason for his decision was as follows (refer to paragraph 57 of the judgment):

“This is because all the elements necessary, if not substantially to be put forth to sustain the Defendant’s claims in the adjudication proceedings are in or occurred in Sabah. There is no dispute that the relevant contract between the Plaintiff and Defendant was made in Sabah. The project works under the contract between the parties which give rise to the claims of the Defendant in the adjudication proceedings were and carried out in Sabah. The Adjudicator appointed is in Sabah.”

The upshot of the High Court’s decision in Tekun Cemerlang is the parties’ right under Section 8(3) of CIPAA to appoint any representative to act for them in adjudication proceedings is restricted in the event the construction contract was made in Sabah, or the construction works were done in Sabah, or the adjudicator is based in Sabah. Such restriction also applies to adjudication proceedings involving a construction contract made in Sarawak or construction works in Sarawak or an adjudicator based in Sarawak because the Advocates Ordinance of Sarawak similarly grants exclusive right to practise in Sarawak to only advocates enrolled and admitted under that ordinance. In either of these situations, the parties to CIPAA adjudication proceedings do not have the right to appoint a lawyer who is not admitted and enrolled to practise in Sabah or in Sarawak, as the case may be, to act as their representative in the adjudication proceedings. Although the judge in Tekun Cemerlang appeared to acknowledge that non-lawyers (such as architects, engineers, quantity surveyors or other non-professionals) do in practice represent the parties in adjudication proceedings, the judge stopped short of making any decision to restrict the parties from appointing such non-lawyers to present them in adjudication proceedings in Sabah.