Thankfully, there are only a very few participants in adjudication who regard it as "little more than a quick 'look and sniff'", to use Mr Hackett's phrase. It is a legal process, although it does not always adopt strict rules of evidence. The rules of natural justice do apply, however, and this means that most adjudicators do everything within their power to ensure that the parties each have a fair opportunity of putting their case.
Mr Hackett is way off the mark, too, with his suggestion that nothing has changed in the past six years. For one thing, the quality of adjudicators has improved beyond all recognition. Although there is still room for improvement in this area, the nominating bodies have adopted more rigorous criteria for selecting candidates to join their lists of adjudicators. Adjudicators themselves are now well rehearsed in the jurisdictional arguments that the parties put forward and many non-legal adjudicators are showing an increased ability to apply rules of evidence, the burden of proof and the law itself. So the process is improving all the time, although the method by which some nominating bodies select adjudicators remains clouded in secrecy, and seemingly geared to ensuring jobs for the boys (despite their protestations to the contrary).
Mr Hackett is way off the mark with his suggestion that nothing has changed in the past six years
The courts have ensured that the scope for ambushing one's opponent has been dramatically reduced and decisions such as the one in Balfour Beatty vs The London Borough of Lambeth mean that the typical "dodgy claim" that found so much success in the early years rarely finds favour these days. Is this why Mr Hackett erroneously believes that the subcontractor fraternity are losing faith in adjudication?
Although this may be disappointing to a few contractors and subcontractors who welcomed the fact that adjudication offered them a quick and easy route to money that they might not otherwise have been entitled to, that was not the original purpose of adjudication. As Mr Hackett quite rightly points out, its purpose was to address payment abuse. In this respect it has been a huge success, because payers can no longer hold on to money that payees have properly demonstrated entitlement to, since in such circumstances payers know that there is now a quick and efficient route to recovery.
Further still, the mere failure to serve a withholding notice often renders payment due, irrespective of any demonstration of entitlement. Adjudication thus remains weighted in favour of claimants. This is demonstrated by the fact that more than 70% of adjudication referrals result in victory for the claimant, a fact Mr Hackett might bear in mind.
Nick Henchie is a partner in the construction and engineering group of Mayer Brown Rowe & Maw