With a new Construction Act on the way, adjudicators are going to have to up their game. Luckily, one nominating body has updated its rules in anticipation
I am writing to bring exciting news of the Technology and Construction Solicitors Association’s (TeCSA) adjudicator qualitative training programme and its “adjudication service”, launched in March.
The new rules
The new version of the TeCSA Adjudication Rules, version 3, is bang in line with changes to the legislation anticipated next year and with current best practice. TeCSA was the first adjudicator nominating body (ANB) to formalise its rules and has updated them on three occasions. However, these latest changes are more material.
- Rule 8 - Intervention by the TeCSA chairman to replace the adjudicator with another nominated person, if it appears necessary to do so.
- Rule 12 - Incorporation of the rules.
- Rule 17 - The controversial rule that said where the adjudicator deems it impossible to reach a concluded view within the practical constraints of a rapid and economical adjudication process, any decision shall represent their fair and reasonable view.
- Rule 20 (ix) - Communicating with one party to the exclusion of the other - which reflects developments in the law regarding natural justice.
- Rule 33 - Enforcement - the rule which said every decision of the adjudicator shall be implemented without delay and that the parties shall be entitled to summary enforcement following this.
- Rule 38 - The rule that no party shall make any application to the courts whatsoever - expect in a case of bad faith on the part of the adjudicator - until such time as the adjudicator has made their decision.
- Nomination by chairman - the application shall be made by the referring party sending the nomination documents to the chairman, with evidence of the contract or legal basis on which a contract is alleged.
- The meaning of “nomination documents” - this denotes the notice of adjudication, the completed nomination form, a copy of the contract or details of its legal basis and TeCSA’s appointment fee.
- Rule 16 - the adjudicator shall establish the procedure and timetable for the adjudication and may proceed if one party does not participate or co-operate.
- All directions must be in writing. It has been made clear that if the adjudicator orally makes directions for the conduct of the adjudication, the directions shall be confirmed by the adjudicator in writing.
- Costs - to the extent permitted by the new act, the adjudicator may require any party to pay or contribute to the legal and expert costs of another party arising in the adjudication. The rules now outlaw “Tolent clauses”, which insist that a party referring a dispute to adjudication has to cover all legal costs. This provides that, notwithstanding anything to the contrary in any contract, the adjudicator shall have no jurisdiction to require the party which referred the dispute to adjudication to pay the costs of any other party.
- Decisions must now be both in writing (as before) and with written reasons.
- The slip rule now reflects the Local Democracy, Economic Development and Construction Act. An adjudicator may correct the decision to remove any clerical or typographical mistake and/or error arising by accident or omission.
The new adjudicator training programme has three new elements:
- The adjudicator list
- Compulsory CPD for TeCSA adjudicators
- Periodic assessments of adjudicators
To reflect the seriousness and solemnity of the process there is now a mandatory adjudicator’s undertaking for all those on the adjudicator list. In short, adjudicators must maintain the necessary and appropriate professional indemnity insurance cover, respond in good time when offered appointments and conduct the adjudication in accordance with whatever rules are applicable under the contract.
In addition, TeCSA has now formally announced a new annual CPD requirement and a periodic assessment process starting in November 2011. Prescribed minimum levels of CPD are to be undertaken by adjudicators wishing to remain on the adjudicator list.
The aim of the assessment procedure is to maintain the high standards expected of TeCSA as an ANB. TeCSA will also now seek feedback from users by way of a questionnaire.
These changes take an important lead in advance of the Local Democracy, Economic Development and Construction Act 2009 and its new scheme coming into force… now when might that be?
Simon Tolson is chairman of TeCSA and senior partner in Fenwick Elliott