Two legal textbooks have just been published, and if you’re in the business of fighting or resolving disputes, you simply have to have them on your shelf
I had a note sent to me today from the Isle of Man. Their parliament has introduced a Manx version of the Construction Act’s adjudication and payment provisions with effect from 1 June 2004. The post also contained the latest edition of Construction Adjudication by John Riches and Christopher Dancaster. I can’t find the Isle of Man mentioned. Never mind. Both authors have lived and breathed adjudication since it came along on 1 May 1998. Both have been appointed adjudicators on masses of occasions.
John Riches is also a “user”, which means he feels the despair of encountering half-baked adjudicators, unknowledgeable opponents and the odd cheat or two. And the book is all the better for that. In fact, it is the best in the business. The first edition (January 1999) was, too. Mind you, not a single High Court case had been published then. The second edition takes us up to case number 172. That was December last. Blow me, we have had 28 more since! Some are very important.
Edition Two takes the reader through the essential ingredients of the statute, the Scheme for Construction Contracts, then the contract document rules, then the nominating bodies rules. The discussion takes note of these 172 judgments. The judges have played a huge role in helping us fathom what is meant by clauses, words and commas. Some have confused the hell out of us. Then the book gets down to doing adjudication: appointment, jurisdiction, powers, the duty of the parties, the duties of the adjudicator and the court. Again, the cases are rummaged for the advice.
What is particularly useful for the user is discussion of the notice of intention, the referral, the response and the rows that crop up at that stage. There is a welter of experience about writing the decision. Following that is a trot around enforcing decisions.
The bit I was really interested in was what the authors call “the process”. Most of it is about how to be the adjudicator. Back in the first edition, they said adjudication was a judicial process. They say the same this time. Okay then, how do you judicially process a construction dispute?
It is a cause for regret that just after the book went to press, four important judgments hit the desk. All had a common thread: the F word
It is here that there is cause for regret. Just after the book went to press, four particularly important judgments hit the desk. All had a common thread. It is the F word: “fairness”. The authors say of fairness “this is a difficult area under which to challenge an adjudicator’s decision.” Better to say it is an area that we are beginning to understand more clearly. Those cases help. If the court detects a want of fairness, it will not enforce. The book discusses the adjudicator investigating the facts and the law. The authors are on tiptoe here. In the beginning, adjudicators thought they were Superman, diving into
Lever Arch files and law books galore. Soon we saw how dangerous that could appear to the losing party. Riches and Dancaster remind us that the adjudicator can simply decide on the case as put by the parties. Then they wrestle with each other about the adjudicator carrying out tests or negotiations. Don’t go there. It could be seen as being unfair. Play safe. Keep your hands in your pocket and dump the cape. Buy the book. Then read the other 28 cases.
My second book is by Neil Jones, it is The JCT Major Project Form. If ever there was a safe pair of hands, they belong to this fellow. This is just as well, as he has a brand new document and nothing to go on. The Major Project Form is only a few months old. He has not written a book that tells us what the form says. Rather, he uses his huge legal knowledge of construction quarrels to tell us what he thinks the new form means. I found myself going to this book for a pithy discussion about a JCT “any-form”. The author takes us to more than 200 cases explaining concepts and principles, dilemmas and difficulties, and by analogy applies all those to the Major Project Form. So get it on the shelf for a recap on the stable of JCT forms. Read it before taking a step in any developing dispute; read it before adjudicating. Read it if you are the adjudicator … but only to understand what the parties say, not to become Superman.
- Construction Arbitration, Second Edition, John Riches and Christopher Dancaster, Blackwell, £59.50
- The JCT Major Projects Form, Neil Jones, Blackwell, £69.50