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A complaint came across my desk recently regarding the failure of an adjudicator to declare a potential conflict of interest with a party representative.
It has turned out to be a bad quarter for the Construction Industry, with the Office of National Statistics blaming the nation’s fall back into recession on a 3% decrease in construction. The construction data was said to have been based on a survey of 8,000 construction companies.
It is well known now that adjudication is a quick process where searching for the perfect result is sacrificed in order to obtain an answer in a short period of time. This is accepted and the fact that adjudicators are allowed to make mistakes is well known.
Why is that parties in adjudication sometimes behave so badly? Perhaps it is because adjudication being non consensual and adversarial creates an atmosphere of acrimony that leads to the kinds of behaviour not normally seen in court or arbitration proceedings.
Scottish Law on Arbitration was codified in the Arbitration (Scotland) Act 2010. The new Act broadly applies to any arbitration commencing after 7 June 2010. It represented a sea change in Scottish Arbitration Law.
Over recent years, much has been written, and even more said, about the quality of performance and abilities of adjudicators.
The extent to which adjudicators can set out their thinking in advance of issuing a decision has recently been considered by the Court of Appeal in Lanes Group Plc v Galliford Try Infrastructure Limited [2011] EWHC 1 [2011] EWCA Civ 1617.
Whether a complaint surrounding an adjudicator’s resignation will be upheld will very much depend on the facts.
It is widely accepted that the initial intention of the Housing Grants, Construction and Regeneration Act 1996, (HGCRA 1996) was that adjudication would be a low cost quick fix method of resolving construction disputes.
A straw poll amongst adjudicators and practitioners in the adjudication field on the relationship between adjudication enforcement and arbitration clauses would likely result in an overwhelming majority answering that the two have nothing to do with each other; that the jurisdiction over adjudication enforcement is solely the province of the courts and arbitrators have no look-in.
It is fitting that the introduction of the amendments to statutory adjudication in England, Wales and Scotland should coincide with a changing of the guard amongst this newsletter’s editorial team.
One of the key changes to Part II of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”) is that construction contracts no longer have to be “in writing” to fall within its remit.
The most provocative amendment made by the “new” Construction Act is, of course, the repeal of the Section 107 restriction that previously meant that only contracts “in writing or evidenced in writing” counted as construction contracts.
Whilst the amendments to the adjudication provisions of the Housing Grants, Construction and Regeneration Act 1996 are interesting, the changes to the payment provisions will have a more significant impact on the industry – both on contractors as they try to grapple with the various different notices and on lawyers, adjudicators and judges dealing with the inevitable payment disputes that will arise.
One complaint that arises from time to time is an allegation that an adjudicator has a close relationship with one of the party representatives.
Isn’t it annoying when you see a shop put up its Christmas display in June. At first, there a brief feeling of excitement whilst everyone remembers how much fun Christmas is (or should that be was when you were a kid).