The Northern Ireland Region of the Adjudication Society has followed with interest the progress of the Construction Contracts Bill through the Irish Oireachtas (parliament). The Bill includes payment and adjudication provisions similar to those in operation in the UK. It was, therefore, a natural step for the region to organise a conference on the Bill. So it was that on 23 February 2012, more than 140 interested delegates gathered in the stunning Aviva Stadium to learn about the Bill and debate its provisions.
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. However the other consequence of having such a quick process is that there is no disclosure for the parties to worry about. As there is no issue regarding disclosure there is also no issue trying to assert privilege over documents to prevent them getting into the hands of the other side.
A complaint came across my desk recently regarding the failure of an adjudicator to declare a potential conflict of interest with a party representative. The complaint was not so much that there was an actual conflict, but that there was a potential conflict and that, because the adjudicator did not disclose the association, this gave rise to apparent bias.
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.
Rumour has it there has been one enforcement in the TCC under the new legislation, but no report is yet available. I gave a lecture on 27 April 2012 to my local branch of the CIArb on the new payment regime and Tony Bingham spoke on the new adjudication provisions.
Adjudication under the Housing Grants, Construction and Regeneration Act 1996 (“1996 Act”) was introduced to provide a quick and enforceable interim decision; a sensible way of dealing expeditiously and relatively inexpensively with disputes. One cannot deny the titanic impact that has had on dispute resolution, the fact that it is now the main method by which disputes are resolved speaks for itself.
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.
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.
As the dark mornings and evenings begin to leave us and the shoots of spring emerge, the commercial world also seems to be waking up. For Adjudication, 2012 should see some of out with the old and in with the new. I suspect that both will move slowly and we will not see the back of the Housing Grants, Construction and Regeneration Act 1996 provisions for some time. Equally I think it may be some time, although possibly this year before we see some activity from the Local Democracy, Economic Development and Construction Act 2009 provisions.
Whether a complaint surrounding an adjudicator’s resignation will be upheld will very much depend on the facts.
Parties to adjudication disputes rarely agree on much but what they do agree on is significant; first, they want an adjudication process and result which is fair and just and secondly, they do not wish to pay an arm and a leg to reach that end goal. How can adjudicators and party representatives ensure that these two elements are achieved?
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.
Over recent years, much has been written, and even more said, about the quality of performance and abilities of adjudicators.
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.
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  EWHC 1  EWCA Civ 1617. Whilst the decision firmly sided with the adjudicator, the case also highlights how varied judicial views can be on what is, in theory at least, an objective question.