The little fellah is popular. The tyke has won the confidence of contractors. It will be a good birthday party, something to celebrate.
Oh, for heaven's sake – the child is flawed. He needs to be made a bit more shipshape. But remember he is only five. And do remember that a fair number of people still don't know how the five-year-old Construction Act is supposed to work. There are still oodles of folk who haven't heard that it contains completely new rules for payment and payment notices, and that it bans "pay when paid". There are still pockets of folk who haven't heard of adjudication and are confined to high street solicitors who mostly sort out quarrelling husbands and wives.
Don't take it merely from me that it's working. There is better evidence. In five years, we've had more than 10,000 formal adjudication appointments. If it were duff or daft, contractors wouldn't use it. They would use something else to sort out their disputes. Adjudication is not compulsory, you know. It can be ignored in favour of alternatives. For example, you could mediate or arbitrate or litigate. Or you could resort to violence – punch the subby on the nose. But the UK construction industry is choosing to use 28-day adjudication. How come? The temptation is to talk about the saving in costs, or the benefit of a high-speed dispute system and all that. But I don't think that's the answer. The answer is that the alternatives are not good enough.
The other day, I went to a conference held by the University of Wolverhampton and the Association of Independent Construction Adjudicators. It dawned on me as I listened to the speakers that adjudication is popular because it belongs to the industry. Contractors themselves invented the system. It's not a lawyer's invention; in fact, some lawyers tried to throttle the lad at birth. Adjudication feels like an industry solution. The adjudicators are fellow builders. The arguing parties argue with the help of a fellow professional – the referee. The ref hasn't fallen into the trap of pretending to be a judge.
Adjudication feels like an industry solution. The adjudicators are fellow builders. Parties argue with the help of a fellow professional
Builders don't want to trip along to the High Court with their disputes. There, they lose control of them. As for going to arbitration, it is litigation in suits. So there is no real competitor to adjudication. If there is one in the wings, it will succeed only if you make it industry-led, industry-run and industry-priced.
True, the Construction Act had a mass of gaps in its drafting. We knew that the act would have to be interpreted, and guidance obtained from the courts. In five years we have had 149 judgments, nearly all of them helpful; they are essays on adjudication and the new payment rules. The judges have worked hard to see it the industry's way. We are obliged to your honours.
Now then, there are two things to say. First, I confess that I didn't think this idea would work and develop in the way that it has. It is not the same now as when we started. It is better. Adjudicators have to be good, very good, at formal decision-making. They are, in truth, special referees. Second, it is time to send the five-year-old off to school. The lad has to know his construction industry thoroughly. That includes knowing the business of construction law. Nowhere in the world has this specialist area of law developed so well as in the UK. Week upon week we see developments in law that adjudicators have to keep on top of. It is time to introduce the referee to a practice certificate. The certificate will be rather like an MOT on a five-year-old motorcar, renewable each year by demonstrating that each adjudicator is keeping smack up to date with the system and learning construction law. And if adjudicators don't hit the mark, they don't get their MOT certificate renewed. Go further, the certificates can be graded – there is room for the plasterer adjudicator with a grade one ticket, or QS adjudicator with a grade five certificate.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.