On a "before" and "after" basis, I think the following trends are discernable:
Simple and uncontested non-payment, it is true, does not seem to be the principal subject of adjudications or at least the reported ones. So maybe adjudication is working at the level of debt collection. What are being referred to adjudication, though, are disputes that would have been sorted out informally before because there was no commercial alternative to so doing. These are the genuinely disputed entitlements of tens of thousands of pounds rather than hundreds of thousands.
Parties revert to adjudication on these because it is easily available, quick and cheap. This inevitably deters informal settlement. Perhaps this has prevented oppressive behaviour by those higher up the contractual chain, but it has increased the amount of formal dispute in the industry.
Does the industry have the strength to resist exploiting adjudication to secure short-term advantage?
The trick is to find a narrow issue on a disputed account and to refer it to adjudication. If you win (and, statistically, you're likely to) fine. If you lose, you move on to the next one. The costs are containable – particularly if in-house teams or claims consultants are used. The disruption and stress caused to the recipient of this barrage of notices is enormous, and the outcome in the round is usually unfair.
It is a repeat of the bully-boy tactics used by the industry so adeptly in the past.
And will we see more of this abuse? The prognosis is bad. If this is happening now, when the industry is flourishing, what can we expect during the next downturn?
Ann Minogue is a partner in solicitor Linklaters.