This is the third article in the series concerning the implications for adjudication of the introduction if BIM into projects.
The fourteenth annual conference of the Adjudication Society, held in conjunction with the Association of Independent Construction Adjudicators on the topic of “The rising costs of Adjudication and how to reduce them”, was held at the Radisson Blu Portman Hotel, London on 5th November 2015 in front of over 90 delegates.
The Holy Grail is getting paid in the construction industry.
It continues to be our experience and I am sure that of many reading this article that Contractors in the midst of pulling out all the stops to win a Contract and concentrating on the two features most coveted by Clients i.e. time and money, that the Contract document eventually signed up to is not given the scrutiny it should be. It is all too often lost in a drawer or cabinet and is generally brought back into the light of day as a reactive response to an issue.
Following the TCC’s decision in ISG Construction Ltd v Seevic College  EWHC 4007 (TCC) it did not take long for the ingenuity of practitioners to come to the fore in seeking to find a solution to what could be perceived as one contracting party gaining an unfair advantage as a result of the other’s failure to operate the payment provisions contained in a contract.
On 1 October 2011 LDEDC Act came into force for all construction contracts made after that date. It amended the old HGCRA, not by much in respect of adjudication but it brought in a fundamental change in respect of payment. The draftsmen of standard form contracts were on the ball and the amended standard contracts were available for the 1 October 2011 deadline. The industry does not, however, adapt readily to change.
The wait for the commencement of the Construction Contracts Act 2013 continues. As has been set out before in this newsletter, the legislation was introduced as a private member's Bill back in 2010. Some of the reasons for the delay to date have been set out previously, and do not need to be repeated here. Whilst concerns held by certain observers that the legislation would languish on the statute books and not become operational have receded, the belaboured manner in which progress has been made in seeing the Act go live is still causing considerable frustration.
The Committee is continuing to make progress on our plans for the year. We plan to launch the new website in time for the annual AGM and conference, so do remember to email me any thoughts you have so we can incorporate them.
We have decided to make some changes to the annual conference. The most significant is that we will now hold it every two years in London and in a region in the intervening years. Hopefully this will address members’ concerns that the Society is too London focused.
In considering the relationship between BIM and the standard contract documents we come up against a number of issues. First, what status should we attribute to our BIM protocols and procedures? Secondly, what status should be attributed to the information produced by those procedures? and Thirdly, what should we say about the resolution of inconsistencies and ambiguities within the information produced for BIM or between that information and other information or procedures?
I usually prefer to use this editorial slot to introduce readers to the content of the newsletter. In this, my final newsletter, I am however, going to depart from the norm and use this editorial to focus on case law.
Adjudication under the Construction Acts(s) in the UK is approaching its 20th anniversary and it can be anticipated, in celebration of that august event, that many reflections upon its efficacy will soon be put into print. So here, somewhat in advance of the auspicious date, are musings that come from a somewhat different perspective. That of the adjudicator fraternity. They are personal views, of course, but it is anticipated that many (or most, or indeed all) adjudicators will subscribe to them.
We know that an adjudicator is entitled to get the law wrong. We also know that, provided the adjudicator answers the right question and does not breach the rules of natural justice, any decision reached will be binding on the parties and enforceable.
On 1 February 2015, the Professional Negligence Lawyers Association launched a voluntary pilot scheme for the adjudication of professional negligence claims brought against solicitors, up to a maximum claim value of £100,000 (the Adjudication Scheme Trial).
Construction payments legislation introducing statutory adjudication was passed in the Republic of Ireland in July 2013. On the foot of this, and other, developments, the Republic of Ireland region of the Adjudication Society was established in January 2014.
Adjudicator’s decisions under the Housing Grants, Construction & Regeneration Act 1996 (“HGCRA96”) are enforceable almost as of right.