The reason I want you to pore over it is that there are still quite a lot of folk who haven't got a grasp on what new-fangled adjudication is about. I'm afraid there are still some who haven't even heard of it. Then there are those coming in at the "real" end of the industry who haven't previously had to think about nasty things like managing a dispute. These are the boys who hitherto have been plasterers and floor layers but whose firms have grown so much that they've found themselves on the other side of the desk. Wallop! They stumble into contract documentation, waffle, bull and gamesmanship. It's a different world in the office.
The first simple question on page one of the 25 is "What is adjudication?" This week I saw a complaining letter from a builder who was angry at being "made" to adjudicate. He was peeved because, he said, he hadn't consented. He had told the adjudicator to go away in plain language. That guy needs this booklet. It will help him understand that it doesn't matter a jot whether the "order" he received to do the shop-fitting work contained an adjudication clause or not; he is in the system simply because he has mixed the ingredients mentioned on page six: a construction contract and a dispute under that contract. By the way, the odd architect or two is still blissfully unaware that his professional services contract shares the same construction contract status as a plastering services labour-only contract.
The building work ordinarily excluded from the statutory force of the Construction Act is also talked about. Usefully, it is explained how the exclusions could be brought back into the contract by what I call "private" adjudication, through the contractual bumf.
Hurrah too for the paragraph "Do I have a dispute?" It explains how the parties cannot bring a mere claim to an adjudicator. It has to have been presented by A to B, and B asked to take a position in reply. In other words you must canvass your positions first. Then and only then can a dispute be put to an adjudicator.
This week I saw a letter from a builder who was angry at being ‘made’ to adjudicate. He said he hadn’t consented … He needs this booklet
"Do I need professional help?" Not always, says page nine. There it tells you when lawyers or consultants are needed. I wouldn't dream of adding my tuppennyworth to that argument. Nor can I get any construction lawyer to comment; that's because they are all madly busy helping clients with adjudication. Incidentally, all the lawyers will happily read the next bit in the guide – what to do first, followed by a step-by-step hand-holding exercise in how to proceed. It tells you how vital the "notice of adjudication" is; even how to compile it, subheadings and all.
The guide really is hard at work helping the industry to keep adjudication an industry task rather than a species of litigation. It tells you where to find adjudicators, listing 14 nominating outfits. Then the all-important "referral" is explained in remarkably plain and simple language. It even warns about attempting to slip into the referral bundle "evidence that the other side has not seen before".
The guide holds the responding party's hand, too. And it is a great relief to be told that counterclaims not previously canvassed need not be a panic response. Simply bring the separate claim under your own adjudication. Remember, the whole idea was to use the referee for bite-sized differences of opinion over the course of the job. The ref, if not on the pitch all the time, is up there in the stands ready to rerun the video.
Postscript
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on info@tonybingham.co.uk.
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