Tony Bingham's typically tongue-in-cheek "nursery school" article, (3 March) was in fact a serious commentary on the recent all-day conference held by the DTI to try to repair some holes in the otherwise successful adjudication provisions, now some eight years old. There were 150 industry "all sorts" invited to inform the judiciary and the DTI on how best to plug those holes.
The morning session focused on payment and section 110(2). The thorny question here was: when is a bill not a bill? The judiciaries answer so far, based on the Scottish Technology and Construction Court's decision in SL Timbers has seemingly been "when the paying party doesn't fancy paying it".
Bingham tells us that the debate ended with no consensus. Not true. There was virtual unanimity that there has to be certainty in the payment process. Sadly, this is not so at present. Where there was no consensus was in how to achieve this, but the betting must be that the DTI will soon be amending section 110(2) to stop cheapskates remaining silent after they receive a payee's interim payment application.
It was indeed a lively debate, especially when, just before lunch, a delegate in typical "Norfolkese" told the conference, including Judge Humphrey Lloyd, that there was no point in discussing section 110(2) until section 107 was sorted - the judiciary having "cocked it up". This was a well-made point: section 107 asks the question "When is a construction contract not a construction contract?", and this become the hot issue on the afternoon agenda, which considered adjudication procedures generally.
Interestingly, in his opening speech to the conference, Judge Lloyd had referred to the Court of Appeal's widely criticised decision in Tally Wiejl vs Pegram Shopfitters, which hinged on whether there was a contract in place [see Building's online archive for numerous articles on this case]. He explained that when statutory wording is unclear, judges will refer to parliamentary transcripts, but nevertheless "legal principles have to prevail over broad-brush policy". He concluded that the courts need more guidance from parliament on this grey area.
So the scene was set for the afternoon session, and as Bingham told us, all was peaceable - there was a clear industry consensus that section 107 (or perhaps the Court of Appeal) had to go, whether by a regulatory reform order or by primary legislation.
So, thank you to the DTI for listening, and for the free lunch. Please invite us again.
Jeremy Hackett, honorary treasurer, the Adjudication Society