The concern is that this body of law is now no longer developing, and we are losing a lot of valued debate and commentary that would allow us to improve our practices. The reason construction law is no longer developing is because of the rise of adjudication and the continued role of arbitration as methods for dispute resolution. Both methods have the same fundamental problem – they are private and supposedly confidential. Even when word gets out as to who won or lost, the reason why cannot be used in another dispute.
Should we be concerned by this? There is perhaps no immediate problem. Adjudicators still make decisions and parties still think they know what a particular clause means. But, inevitably, times move on, new contract forms are issued, new arrangements (supply chains and partnering) become commonplace and the value of the old law is diminished.
The real problem is that a lack of guidance from previous cases only increases the likelihood of misunderstandings and disputes. When new situations call for decisions, those decisions are likely to be made in adjudication (or possibly arbitration). They will not therefore produce a recorded decision of any benefit to others in terms of ascertaining how another dispute may be resolved. Each adjudication produces a result of benefit only to the parties. Nobody else learns anything from the experience.
The risk is that in 20 years' time we will have little new case law of real benefit to parties and a mass of adjudications perhaps reaching conflicting decisions and perhaps deciding again and again points previously "decided". I was recently involved in a case where one of the points was whether an adjudicator could order one party to deliver up certain documents. The argument went that this was analogous to the power of an adjudicator to rectify an agreement. The courts possess such powers, so why not adjudicators? The adjudicator ordered delivery and the decision was complied with. But, when it comes to the next case I have with this issue, that previous decision will be of no benefit whatsoever. It won't be binding, it won't be persuasive – in fact it won't be capable of being referred to at all. Further, I won't be able to offer a future client any comfort as to the likely result based on my previous experience. We are creating a wealth of experience as to what clauses mean and what the result should be in certain circumstances, none of which is accessible to anyone else.
The solution? First, there is overcoming the problem of confidentiality (which has applied for years in relation to arbitration). Second, the precedent value of legal cases is governed by the level of the court that made the decision. It would be difficult to apply anything other than a common value to adjudication decisions. Would adjudicators wish to be bound by other decisions? Unlikely, so previous decisions would probably need to be persuasive rather than binding. The biggest problem is how to collate these decisions into a useful form at a cost that is not prohibitive. Court law reporting is a difficult process that has developed over many decades and is a skilful art. Perhaps we need nominating bodies to publish no-name case summaries of adjudication decisions involving points of law or principle.
If we don't do something and if the number of cases being determined in court continues to fall (and often those cases are adjudication enforcement decisions, not decisions on the substantive merits), we are going to have precious little new case law in years to come.
James Bessey is a partner specialising in construction dispute resolution at Hammond Suddards Edge, Birmingham.