It is now over four years since adjudication was introduced under the Housing Grants Construction & Regeneration Act 1996. When the Government brought the adjudication provisions into force it indicated that it would keep the workings of adjudication under review and introduce any changes to the legislation including the Scheme, as might be thought necessary.
Reports have been commissioned and soundings taken in the industry about the need for changes to the statutory framework. The first annual conference of the Adjudication Society was seen as an important opportunity for members to discuss their views on this topic.
Most of those who spoke appeared to believe that adjudication was a quick and imperfect process which could be improved upon. The statutory framework within which adjudication has to be carried out could be made much clearer. However, there was a reluctance to highlight specific areas where changes to the statutory framework were thought to be necessary against a background where it is understood that the Government had initially indicated an intention to make changes in limited areas and then moved to a position where it was unlikely that any changes will be made.
Areas where legislative change might be considered included:-
1. The quality and appointment of adjudicators including the procedures and training of adjudicators by ANBs.
2. The 28 day period including the prevention of ambush.
3. Unmanageable quantities of “relevant information”.
4. The rules of natural justice including the extent to which they apply in adjudication.
5. What constitutes a “dispute” rather than a number of disputes.
6. Adjudicators who are clearly wrong in law.
7. The insolvency of the winning party before the decision of the adjudicator is reviewed.
8. Correction of errors in decisions.
9. The costs of the parties.
10. The timing of the request for and the issuing of Reasons for the adjudicator’s decision.
The Government had indicated that it was considering change in only three areas:-
1. Giving an adjudicator a right to correct on his own initiative or on the application of a party, any clerical mistake or error arising from an accidental slip or omission provided an application is made within 5 days of the issue of the decision or such shorter period as the adjudicator might specify.
2. A clear statutory statement than an adjudicator does not have the power to deal with the legal or other costs and expenses incurred by the parties and
3. Giving the adjudicator a power to set a deadline for a request for Reasons for his decision.
Instead of changes to the legislation, the Government has been involved in issuing informal guidance to adjudicators. A discussion took place about whether guidance to adjudicators such as that issued by the Construction Umbrella Bodies Adjudication Task Group in July 2002 was preferable to specific changes in the statutory framework. Such guidance has no legal force. The Courts may consider that it does not entirely reflect the existing statutory provisions, properly construed. However, there was a concern that unless changes to the statutory framework were well thought through, they could just open up other areas of uncertainty and dispute.