For those wondering what to put in their loved ones’ Xmas stocking this year, here are two page-turners about adjudication that will leave them feeling satisfyingly replete

Tony Bingham

I am going to tell you about two books to go into the firm’s Christmas stocking. Tell you too about the judge who has decided to sock it to ‘em!

The first of the new books, Adjudication in Construction Law, is by barrister Darryl Royce. The second, A Practical Guide to Construction Adjudication, is by solicitor James Pickavance.  Both are ever so good.

First, the judge – he too has written a best seller: Coulson on Construction Adjudication. It was out early this year. But his latest remark about adjudication was in a High Court judgment on 24 November 2015, called Severfield (UK) Ltd vs Duro Felguera UK Ltd. Like the two new books, the case is all about the statute we call the Construction Act 1996. The £5m project was for construction of a power generation plant. The contract collided head on with what is, or is not, within the scope of the Construction Act. Some of this project was, some of it wasn’t. So only some parts were subject to the payment and adjudication rules. Yes, a recipe for confusion. I have seen it several times. The judge had a go at parliament about this. It is worth repeating: “All of the difficulties here can be traced back to the legislature’s desire to exclude certain industries from adjudication. A review of the debates in [parliament] reveal the grounds for exclusion:

(1) adjudication was seen as some form of punishment for the construction industry from which (2) the power generation and some other industries should be exempt, because they had managed their affairs reasonably well in the past.” Mr Justice Coulson went on: “I consider that both of these underlying assumptions were and remain misconceived. Adjudication both as proposed in the bill and as something that has now been in operation for almost 18 years, is an effective and efficient dispute resolution process.  Far from being a punishment, it has been generally regarded as a blessing by the construction industry. Furthermore, it is a blessing which needed then – and certainly needs now – to be conferred on all those industries which are currently exempt.” This is not the first time these irrational distinctions have caught the sharp edge of the tongue of Her Majesty’s judges.  Judge Humphrey Lloyd had a go in 2000 about these oddities. So too Judge Thornton in 1999.  Wakey, wakey parliament!

This is not the first time these irrational distinctions have caught the sharp edge of the tongue of Her Majesty’s judges. Wakey, wakey parliament!

So, let’s consider these two latest books. Darryl Royce speaks with authority.  Every part of the Construction Act is examined by reference to the cases and the judge’s remarks on that particular topic. A must for the lawyer’s bookshelf and a must for adjudicators or those aiming to be the adjudicator. The style has calmness about it. In 320 pages of valuable counsel’s analysis, Royce takes the reader through the background to the act’s introduction into parliament in 1996 and the Latham Report from which the bill sprung.  He expounds too on the various reviews of the act since 1998, then deeply examines its nooks and crannies. This is representatives’ territory, so too the adjudicators’.

Once the adjudication itself is all done, there then comes the “now what” period. Enforcement is the now what. Royce carefully explains court proceedings; that part runs to 70 pages. I was surprised though that he devotes so little space to the payment rules in the Construction Act. Those rules seem to have set the industry into a spin.  But Royce’s calm exposition justifies his comparatively few pages.

He sums up the regime by citing the Rupert Morgan case: “It is not the actual work done which defines the sum.” Instead it is the application for payment or responsive certificate or payless notice. The only item missing, in my view, is a warning on how easy it is not to follow the rules in making an application for payment.

Solicitor James Pickavance really has come up to snuff. £65 for 700 pages (or £59 online and searchable). He has gone for a practical guide to adjudication. Pickavance is a partner at Eversheds: the firm can be proud of the book. He tells the reader what to do and when and how and why. Yes, yes, it is a must for the representative lawyers and/or consultants. Yes, yes for the adjudicators: it’s yes, yes, yes especially for you constructors. Pickavance’s book style is practical too. I do like his “In a nutshell” paragraphs. Each theme has this preamble and then the detail, and upwards of 600 cases follow.

Then he devotes extensive analysis of two especially important topics: the adjudicator’s jurisdiction and natural justice. Astonishingly he had to cover 68 subheadings in those two troublesome areas. Constructors should use his model forms – I mean it. Adjudication is everyday stuff now. The next one for you is just around the corner; it will probably arrive on Christmas Eve.

Open that Christmas stocking early. And, for those of you not wrestling with a referral or response, or reply to a response, or rejoinder or surrejoinder … or writing that award, do have a very Happy Christmas.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple