I am advising a builder who has a dispute with a private residential client. His contract, a standard JCT98 form, states that there is provision for adjudication.
Emden's Construction Law (section V, page 7, paragraph 20) says: "An adjudication clause in a building contract with a residential occupier … must be brought specifically to the occupier's attention if it is to be validly incorporated into the contract, and which, unless individually negotiated, will be struck down by the Unfair Terms in Consumer Contracts Regulations 1999."

I have an client who is unhappy because these clauses were not specifically negotiated. They were incorporated in the standard form negotiated by all the constituent bodies of the JCT but nevertheless appear to be unenforceable.

Over the past 20 years, I have seen, on average, 60 tenders a year prepared by construction consultants – most for private residential clients in the London area. I have not seen any tender documentation that states the adjudication clauses are to be specifically brought to the attention of the client in order to comply with Emden's advice.

The private residential occupier construction market is large and has more than its fair share of disputes. At present, the consultants procuring work in this sector could conceivably be held to be negligent if they do not expressly advise their private clients of the advantages of adjudication over other formal forms of dispute resolution.

Should the professional bodies be advising their members of potential claims against their professional indemnity insurance because of this omission? And should the JCT obtain representation from, say, the Trading Standards Institute so that this loophole can be closed?

What I do know is that in future I shall be advising my builder clients to insert the words "this clause has been specifically brought to the client's attention" against the adjudication clauses in their contracts when signing on the dotted line.

Postscript

Ronald Harrison, via email.