Adjudication today is a far cry from what parliament envisaged but there’s no question it’s working well for the disputomaniacs who earn their crust from it

Tony Bingham

Courtesy of MacRoberts, solicitor, I took part in a debate in Glasgow last week. I was asked to propose the motion “adjudication is not working”. Now then, there was a fraction of Scottish divilment going on. My host knew full well that the proposer’s day job was adjudicating building disputes. And here I was about to persuade 300 of MacRoberts’ guests to condemn the process. And my opponent at the other lectern was one Rudi Klein. His job was to argue how wrong I was. I got trounced. Klein overwhelmingly sent me down with my tail between my legs. The room said it was working.

Rudi’s foundation for success was to ask: “Do you want to go back to what we had before?” I only argued that what we have now isn’t working the way parliament intended it to. I was being a bit sneaky with that slight amendment. And I didn’t get away with it.

It must be right to say that adjudication, as intended by parliament, has been left behind. But I had to accept that what we now have, according to the voters, is working. What’s the difference? Parliament gave us a cheap and cheerful system for deciding who shall have the benefit of the cash being argued over. Imagine the scene: Two QSs are teasing each other about the amount of cash to be certified this month, arguing whether inserting wigglepins into thingumajigs is a variation or not and, if so, arguing about the value. In the next room, the architect is being shouted at for the measly extension of time he doled out. In the next room two contract-document fanatics are trying to make the other bloke understand what one of those loony clauses in NEC3 means.

Parliament didn’t intend any of these disputes to get more than a look and a sniff and a finger in the air from a QS adjudicator, engineer or architect to referee and decide which way the money would go

Parliament didn’t intend any of these disputes to get more than a look and a sniff and a finger in the air from a QS adjudicator, engineer or architect to referee and decide which way the money would go pro-tem. Parliament said none of this would cost more than a few bob. None of it was meant to be a permanent fix. All of it was to be done and dusted in days, at site level.

Then, the rot set in. Imagine the same scene seven, eight, nine years into this adjudication. Two QSs are teasing each other over the amount of cash. There is an adjudicator in the room. In the next room that architect is being shouted at. The adjudicator is in that room, too. In the next room two lawyers are trying to fathom which way contract clauses are to be interpreted. The adjudicator is in the room. All these years later, hardly anyone in the adjudication hasn’t got a law degree or Master’s in construction law.

The adjudication room heaves with solicitors and barristers. The bumf on the table contains a referral and umpteen lever arch files, a response and files, a reply to response and files, a rejoinder and files, a surrejoinder and files and a surrebuttal. There are witness statements, experts reports, law reports, counsel’s opinion and learned pages of commentary from Building. This is working ever so well for all these disputomaniacs … me too, I confess. Adjudication is working ever so well, better than all of us thought … for the lawyers, for the consultants, for the adjudicators.
Rudi Klein got to grips with all this heavy weight arguing. There was a hint that he, too, could see we had left the original idea of behind. He more or less told me to put a sock in it - or rather, put a sock in the numbers of documents, arguments, commentaries coming in from the parties’ representatives. Just try to put a stop to the arguing and you will be accused of shutting out argument. “Breach of natural justice,” yells one lawyer. And a court might just agree and torpedo the adjudication.

All these years later, hardly anyone in adjudication hasn’t got a law degree or master’s in construction law

Here is what parliament originally intended: “The purpose of adjudication is to provide a speedy mechanism for settling disputes in construction contracts on a provisional interim basis, and requiring the decisions of adjudicators to be enforced pending final settlement by arbitration or litigation, whether these decisions are wrong in point of law or fact.” What we have morphed into is a rip-roaring fierce competition by high-flying lawyers to make a one-shot accurate affair that ends the dispute without more ado. One more thing they all like: it’s all done at high speed and at a tiny fraction of the price of litigation. OK, OK, I lost. It is working … but not the way parliament intended.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple