But this outbreak of sweetness and light in the courts hasn't really changed everyone; it has just moved the aggression sideways, into adjudication. Ambush is the favoured way of starting the process off, which seems to be an inevitable result of the dynamic of adjudication. Where is the spirit of Woolf's ideas in that? And what about Rethinking Construction and Accelerating Change?
In theory, if the ideas in Accelerating Change were accepted and incorporated into projects, there would be no need for adjudication at all. The supply chain would be integrated, if not working, on a partnering basis. So everyone would be paid the amount they were due, throughout the chain.
In other words, no more subbie-bashing. It should not be a revelation to us that contractors that treat their subcontractors reasonably find that they rarely receive adjudication notices from them.
Accelerating Change has some great ideas, but even its authors recognise that not everyone will work within an integrated supply chain, and certainly this will not happen straight away. This means that even if there is a reduction in subbie-bashing, there will still be adjudications for various reasons. So how about introducing a bit of the Woolf spirit into the whole process? This is what people do to some extent already.
Does this sound like a familiar scenario? "You owe me more money [for x reasons]."
"Oh no I don't [for y reasons]."
"Oh yes you do. Here is my adjudication notice."
Sometimes this kind of exchange can end in settlement before service of the notice, but not always. Often this dialogue takes place without the reasons being fully explained. So how about going further and having a pre-adjudication protocol, similar to the Woolf pre-action protocol?
The idea would be to make sure that both sides knew what the dispute was about. This would avoid arguments later about the adjudicator's jurisdiction. A current problem is that sometimes new evidence is presented during an adjudication, giving the distinct impression that goalposts are moving. The courts don't like this. A pre-action protocol would avoid it and could even lead to settlements without the expense and hassle of going to adjudication at all. It certainly seems to work like that for litigation.
The protocol would involve, at the very least, an exchange of statements of the dispute before the adjudication starts. It could provide that the adjudicator can deal only with those arguments set out in the dispute statements. It could even have a short – say, 48-hour – procedure for trying to agree on the identity of an adjudicator. This would avoid the lottery of asking one of the nominating bodies to appoint someone.
The quality of adjudicators is definitely patchy, and it is all too easy to end up with someone who for one reason or another is not right for your particular dispute.
What would be the sanction for not accepting the protocol? It could be that the referring party pays all or part of the adjudicator's fees, or that the responding party has longer to put in a response. It has been suggested by some judges that adjudicators should refuse to make a decision at all if a decision cannot "properly, reasonably and fairly" be made in the time available. So the protocol could say that unless the referring party agreed to grant a further period of time – which could then be used by the responding party to put in their response – the adjudicator would be entitled to say that they were unable to make a decision.
The idea of the protocol is to bring adjudication into line with partnering, integrated supply chains, co-operative working … all the good things Accelerating Change says we should adopt. It has worked for litigation in and out of court and there's every reason to suggest that it would work for adjudication, too.
Gillian Birkby is a partner in the construction department of Mayer, Brown, Rowe & Maw, solicitors. She can be contacted at firstname.lastname@example.org.