The scheme for adjudication is being redrafted to fit the new (deep breath) Local Democracy, Economic Development and Construction Act. If only they would write it on just one page
It’s a “must”. Your building contract, your architect’s contract, and your labour-only putter-upperer contract must, shall, will contain a pukka adjudication clause. If it’s missing or half-baked, then parliament has laid down a canny rule: “the scheme” applies. The scheme is an invention of parliament that sits neatly with the Construction Act. It has worked only reasonably well. What I really mean is that it is daft in places, is longwinded, over-lawyered and should be consigned to the fire. The scheme for adjudication is a set of rules for, well, adjudicating. It is automatically imported, says parliament, into all construction contracts if the adjudication clause already there is duff or missing altogether. It’s been with us for 12 years.
Ah, but the Construction Act is now ousted by “new” adjudication rules in the Local Democracy, Economic Development and Construction Act (who on earth gives these names to acts of parliament?). The new adjudication rules can’t go live until the (now) old scheme is made to fit with the new act. The department for business, innovation and skills has published a draft. It is consulting you for your view. Here is my first idea. The old scheme has thousands of words, 26 paragraphs, 94 clauses and sub-clauses. Snag is, it is written for lawyers by lawyers. Let’s get rid of the gobbledegook – get rid of thousands of words, clauses and paragraphs.
Look, the very first heading in the proposed “new” scheme is called “the notice of intention to seek adjudication”. It runs to 11 clauses. It tinkers with the same stuff as in the old scheme. And we have had some lunatic incidents in the old, which reappear in the new! Lunatic? Yes. There is a trap. If you apply to an adjudicator nominating body for a referee before you serve the notice of adjudication, even by one minute, the whole of the completed adjudication is void. Result cancelled. Apply one minute after you serve the notice of adjudication and yes, all’s well! Oh come on; it makes no odds in real life. But the courts interpreted it strictly – they had to. Let’s get rid of thousands of words of rigmarole.
What instead? Is Bingham actually suggesting we leave gaps? Yes and yes again. Instead of strict rules, leave gaps. The parliamentary draftsman will now develop the heebie-jeebies; he long since left behind any sense of reliance on common sense. Please, old chap, leave gaps – to be filled with common sense. Nobody in the building world needs a rule that says, “request the person named in the contract or request the adjudicator nominating body to appoint the adjudicator”. It’s too obvious. If the adjudicator goes sick or is unavailable, no one in the building world needs a rule which says what to do; it’s too obvious. True there has to be a rule that sets day one of the 28-days dash. But nothing needs to be said about extending the 28 days because all that is in the main act anyway. And, for heaven’s sake, no one needs to be told by nanny what documents are to be sent to the adjudicator; it’s too obvious.
The scheme then goes on and on about the “powers of the adjudicator”. There is no need to tell anyone of the duty to act impartially, be independent; it’s all in the main act. Nor is it necessary to repeat the main act, which says: “The adjudicator may take the initiative in ascertaining the facts and the law.” Spare me, please, a rule that says the adjudicator can draw adverse inferences from a party’s uncooperative behaviour; too obvious. The final paragraph in the scheme tells us that the decisions of the adjudicator are binding. Tells us that the adjudicator shall decide the matters in dispute. Tells us that the adjudicator can decide any party is liable to make a payment under the contract to the other. Tells us that if the contract contains a provision for the award of interest, the adjudicator can so order interest. Oh come on, please. All of it is precisely what the main act already says.
The parliamentary draftsman is being idle here. It takes an awful lot of effort to write a set of rules in just half a page; much easier to take 10 pages. But this scheme really does not need all this bumf. High time it went. Stop driving 28-day adjudication into an over-lawyered, uncommercial unreal world. Just one page for the scheme is enough.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple