This week, why it can make sense to sign an adjudicator's terms, naming and shaming poor adjudicators, support for Judge Thornton's defence of enforcement and the power of greed
Please don't say no
We read the concluding sentence of John Redmond's article "Just say no" (30 August, page 35) with some surprise. To advise parties point blank not to sign an adjudicator's terms is not, in our view, very helpful or indeed constructive. Here are some of our initial observations:
  • Adjudicators are vital to the process and, like most of us, are just trying to earn a living. What is wrong with them producing terms and conditions that set out the basis on which their fees will be earned?
  • In our experience there has been a recent and worrying trend of parties failing to pay adjudicators' fees. The absence of specific terms and conditions makes it all the more difficult for the adjudicator to be sure of securing payment.
  • John is correct in identifying the lacuna in the appointment procedure. It is for that reason that the TeSCA rules were drafted so as to create a contract when the adjudicator is appointed.
  • The terms and conditions can be used to highlight some of the defects in the Scheme for Construction Contracts, such as clerical errors in the decision, time within which to request reasons, and so on. These matters were specifically highlighted in the recently published Construction Industry Council guidance.
  • John's guidance does not sit well with the JCT contracts regime.
  • A limit on the time the adjudicator can charge for is an interesting but unworkable idea. The amount of time required cannot be estimated until submissions have been received – usually some time after the appointment is made.

David Miles and Philip Eyre, Glovers, London W1.

A heartening tale
I was heartened by His Honour Judge Thornton's defence of adjudication enforcement ("Fairness and force", 28 June, pages 54-55). A recent case I was involved with – Multiconcept Developments Limited vs Abacus (CI) Limited – supports his contention that adjudication enforcement continues to work well. Judge Wilcox refused to order a stay of enforcement despite the defendant's attempts to demonstrate a set-off and the claimant's impecuniosity.

In awarding the claimant summary judgment for the full amount, Judge Wilcox underlined the importance of cash flow. He said: "The object of the housing grant scheme is to ensure that there is a proper cash flow to contractors and their subcontractors to ensure speedy payment until there is a final adjudication by court or arbitrator."

The judge had this to say about the grounds of defence put forward by Abacus: "To stay, there would have to be demonstrated special circumstances. In this case I have come to the firm view that there are no special circumstances and that the money must be paid therefore within 14 days."

This judgment sits well with Judge Thornton's support for adjudication enforcement, conditional as it is on jurisdictional proprietary and fairness. As this case shows that where both of these tests are satisfied, enforcement follows.

Jim Mason, senior lecturer in construction contracts law, the University of the West of England, Bristol.

Have I told you the one about …?
Week in and week out, I read articles in your journal that contain good constructive criticism, sound advice, and just plain common sense. Recent articles by Tony Bingham, Rudi Klein, and, of particular note, John Redmond on adjudicator's fees and terms, have been excellent. So why, with so much common sense and advice around, do we continue to have so many disputes in our industry?

It is, of course, about greed. Everybody – employers, contractors, subcontractors, suppliers, consultants and Uncle Tom Cobleigh and all – want more for less. Now it is adjudicators.

Did I tell you about the adjudicator who had a minimum fee of £200,000 – even for a £500 dispute? Or the adjudicator who charged 1% interest a week for non-payment of his fees? Or the adjudicator who charged £150 an hour and then held that under a JCT form, an architect (not the employer) could determine the contract, even though it is not a party to it? Or the adjudicator who thought that a defects period included maintenance, or periodic inspections? I could list a few more not dissimilar gems. What hope justice? I suggest this is why our industry is like it is. Any other ideas?

Will Steer (retired, thank God), Tiverton, Devon.

Henchie was right

Nick Henchie’s article “Take them to the vets” (13 September, page 56) is hardly fair to adjudicators, but then, lawyers don’t generally like adjudication. Gone are the days, thank goodness, of small value disputes, where most of the fees were spent protecting liability for costs. However, Henchie does make some excellent points. Yes, the adjudicator handling 10 adjudications should be named and shamed – as should full-time adjudicators. A criterion for being an adjudicator is that they are industry practitioners, not amateur judges. In the past year, I have known of one adjudicator twice going on holiday during adjudications, and another who closed an arbitration hearing and promised his award within the month. Six months and no award later, he got angry when a party threatened to report him. Why? He was handling 17 adjudications at one time. Ironically, both adjudicators are on the special panel of a leading adjudicator nominating body telling others how to be professional. The recent Construction Industry Council’s report Adjudication: The First 40 Months reinforces Henchie’s main point – the importance of decision-making. Unsurprisingly, interim payment disputes, which are swept up by the next valuation and subsumed by the final account, are the most common type of adjudication. What is surprising is that they account for only 21% of all adjudications. Finally, yes, there has to be accountability by way of complaints procedures and regular reappraisals. The RICS and Chartered Institute of Arbitrators have tried and so far got into all sorts of trouble. What is needed is a common code of conduct and a regulatory body with representatives from the leading ANBs – not unelected and unaccountable power groups within each ANB – plus total transparency, as Henchie suggests, of how appointments are made among panel members. Jeremy Hackett, Schofield Lothian Construction Consultancy, via email.