I shudder. Leave our Construction Act alone, you lot! It is the most successful dispute management tool ever and what's more it doesn't cost chancellor Gordon Brown or his Treasury one penny – just the opposite. It saves squillions of pounds from the public purse because contractors have begun managing disputes instead of taking them off to the High Court.
As for the Construction Act payment provisions, leave them alone, too! I know that some folk try to get round the ban on "pay when payed" by turning it into "pay if paid", hoping to outwit the act. I have a great way of kicking those shenanigans into touch. Don't change the act, simply tell the bloke who wants to put a "pay if paid" clause into the the contract to go to hell. It's called freedom to contract. If you don't like the terms proposed, speak up and negotiate. Use your loaf, not the nanny state. And if some customer wants you to buy into a payment term, which makes you wait 90 days, well then its up to you to say yes or no. We don't want a government forum wiping our noses for us, do we? Look, if you are a bloomin' good subby, you will be able to negotiate acceptable terms.
Mr Brown, Mr Prescott, you lot, leave our "Construction Act" alone!
Instead, would Mr Brown, Mr Prescott and all the nannies please come to an open forum on Tuesday 27 April 2004 at 6.00pm. It's at King's College, in the Strand, London, and it's free. On that evening the Construction Act will be almost exactly six years old. It's a sort of toddler's party. Jelly, ice cream and iced buns will be served. It's an idea of the Society of Construction Law put into effect by Peter Fenn at UMIST, Michael O'Shea at Masons and Martin Burns at the RICS. They have invited the adjudicator nominating bodies and the users of adjudication and payment provisions to come and have a chat. The most important partygoers are the users. It is feedback that is wanted. And when I say "users", I mean the actual people affected in real life by the outcome of adjudication, not just the representatives.
If you don’t like the terms proposed, speak up and negotiate. Use your loaf and not the nanny state. It’s called freedom to contract …
The ANBs are the folk who compile the panels of adjudicators. Then they receive a request to nominate and choose as best they can a candidate to do the 28-day raindance. After which, the adjudicator does his stuff. Are they any good? Are they what you expected? Come to the open forum and tell.
Yes, yes I know you may have received a decision that you don't agree with, but that might simply be you being partisan. It may actually be that since you had the burden of proof and the scales were finely balanced, you lost. It may be that you argued your case badly. All that apart, Mr User, what ideas do you have about the way the system is operated? Have you got any bright ideas? Why ask? Because, with any luck the ANBs will sit up, take note and put your idea into effect. And, anyway, we can all tell Mr Brown and Mr Prescott to take a running jump with its secret forum.
The open forum is another innovation by the Society of Construction Law. It came up with an extension of time protocol last year, do you remember? Currently it is working on an ethical code in construction. Now it has this idea of feedback on the Construction Act. Thankfully the society has no interest in putting up a political argument, it is not a lobby group, it has no hidden agendas. What is more, it is open to ordinary people like you and me to just join … and learn and discuss and take ideas on board if we want to.
Tony Bingham is a barrister and arbitrator specialising in construction.