For the adjudicators reading this article, I appreciate life is challenging. It is littered with difficulties of varying proportions and consequences; perceived bias; jurisdiction challenges; going outwith your jurisdiction; not exhausting your jurisdiction; breaches of natural justice; and all the usual “procedural” hurdles that have to be navigated.
As of 29 July 2013 the President of Ireland signed the Construction Contracts Act 2013 (“The Act”), enacting the long awaited legislation seeking to improve cash flow for sub-contractors within the construction industry and finally bringing a statutory right of adjudication to Ireland.
This is my fifth article on the basics of adjudication. You will recall that my aim is to put any of the alleged complexities of the adjudication process in perspective and empower sensible, organised construction profession people, who only use adjudication infrequently, to use the process to resolve simple disputes confidently without recourse to specialist support. That is what the process is for, after all.
The resolution of disputes in both the domestic and international arenas has, over the years, relied heavily upon non-court processes, increasingly in recent times. The costs incurred by the parties involved in dispute resolution can be considerable, with relationships between them also being put at risk. The focus has, however, increasingly switched in more recent years from binding resolution by tribunal decision imposed upon parties, to a more co-operative and non-confrontational approach.
I recently became aware of a complaint about an adjudicator who had not conducted a site inspection in a case that involved allegations of defective workmanship. This led me to ponder the question of whether an adjudicator’s decision not to conduct a site meeting or site inspection could be a valid cause of complaint.
Ladies and gentlemen of the Adjudication Society, some of us are pleased that we have avoided the cold, frost and snow of our usual winters. However there are others whose homes are located within flood planes or areas generally available to damage from river or sea who are in an extremely unfortunate position. If there is anything that members of the society consider that they can do to assist those who are in dire straits then it might be possible for regional or branch event to host some relevant activity.
Adjudication is now a dispute resolution process that most in the UK construction industry are familiar with. The process was introduced by the Housing Grants, Construction and Regeneration Act 1996, which became effective from May 1998. We have therefore lived with it for almost 15 years. Adjudication is included in all of the standard form contracts, but in any event will be implied, as we all now know, into any contract that meets with the definition of “construction contract” under the Act.
The Christmas Season is now upon us. The economy is improving so we hear, but as to whether the rumour will become reality we will have to wait and see.
As Nicholas Gould has already observed elsewhere in this newsletter, at present adjudication is not available in the Middle East and as a result dispute boards have become popular on construction projects in the region.
This edition of the newsletter, in keeping with the season of festive indulgence, brings you a number extra-large helpings of food for thought : we hope you will think of it in terms of being a delicate dispute resolution tasting menu of varied delights!
The decision of Akenhead J in Parkwood Leisure Limited v Laing O’Rourke Wales & West Limited  EWHC 2665 will be of particular interest to members of the Adjudication Society as it placed collateral warranties on the adjudication radar in the most unexpected way.
This is my fourth article on the basics of adjudication. You will recall that my aim is to put any alleged complexities of adjudication in perspective and, as far as possible, empower those of us that actually work in construction, and are only occasional users of adjudication, to understand and be capable of entering into and completing the adjudication process without specialist advice. The adjudication process is supposed to assist construction by sorting our disputes with as little fuss as possible.
For many years now, the Technology and Construction Bar Association (“TECBAR”) has administered ADR panels of its members in the fields of arbitration, adjudication, mediation and dispute resolution boards. Construction adjudication, of course, has been a central feature of ADR for 15 years and as members of the Adjudication Society are well aware there have been a large number of TCC judgments in adjudication enforcement proceedings (which have both simplified the workings of the process in some areas and arguably complicated it in others).
The executive committee is settling in well. I am still Acting Hon Sec; any volunteers to act as Hon Sec are welcome to email me. Richard Booth has been confirmed as the member of the Committee to replace the very long serving Tim Willis as regional coordinator. Our deep and heartfelt thanks go to Tim for his very hard work. Susan Francombe has very kindly agreed to take the very unofficial role of AGM coordinator. Many thanks, Susan. Hamish Lal continues as Treasurer and reports a very stable financial position.
The Brothers Grimm collection of Fairy Tales includes a tale about a tailor with “seven with one blow” embroidered on his belt, to explain that he had killed several flies with one stroke when they attacked his jam. This embroidery was later mistaken by a giant to signify his killing prowess, resulting ultimately (with some cunning trickery) in the giants all fleeing in fear of the tailor.