If ever proof was needed that adjudication is having a positive impact then it was Nick Henchie's article on 22 February ("Don't even think about it", pages 52-53). Here we have a solicitor so desperate to protect main contractors from subcontractors pursuing their contractual and statutory rights that he is openly advocating setting up "deterrents" and "tricks" in the contract to stop them.
The fall in the number of cases going before the courts since the introduction of "statutory" adjudication is evidence of the successful impact that adjudication is having, and proof that Latham was right. If main contractors don't like adjudication because it doesn't give them the results they like, then don't get into it in the first place. Pay subcontractors what they are entitled to, don't delay payments to prop up your own cash flow, and don't confiscate retentions at the end of a job thinking it is your little bonus or profit on the job!
If main contractors feel badly done-by through adjudication, then litigate (or arbitrate) on the substantive issues instead of running to court over the adjudication decision bleating about "jurisdiction" and getting a bloody nose in return on almost every occasion.
Finally, why are so many solicitors who act for main contractors so upset about adjudication? Could it be that adjudication often settles disputes for a few thousand pounds rather than litigation, which can cost tens or hundreds of thousands of pounds? Main contractors, have a think about that one!
John Gaffney, Knowles Capital Projects, via email.
And now, the headless dodo
Eureka! After the headless chickens, I am proud to announce evidence of a headless dodo (Nick Henchie, 22 February, page 52-53)! I have already booked Sir David Attenborough, who will have no difficulty finding it in the woods and the trees because this sub-species has a particularly active scent gland. The evidence is:
"Lower end of the contractual chain … disputes do not represent the bulk". That's odd – Glasgow Caledonian University have some pretty complete statistics that show "lower end" disputes between subcontractors and main contractors do represent the considerable majority of adjudications.
"Everyone who knows anything about adjudication, knows that … even the most … unmeritorious claim stands a good chance".
That's odd – surely any half-decent lawyer would have no difficulty despatching a "most unmeritorious claim".
"The clause that most effectively deters a would-be claimant … makes [it] responsible for its [the adjudication's] costs". That's odd – isn't this the "Tolent clause" that is so abhorrent to the industry and the government that they are both determined to outlaw it?
"The referring party shall not … rely on any evidence … that been not been previously submitted". That's odd – if a referring party submitted fresh evidence wouldn't a responding party simply point out that this evidence had not previously been discussed and that by definition the specific dispute referred, did not yet exist?
"A neat trick is to … not give them [bespoke rules] at contract formation stage [to provide an early warning device]". That's odd – wouldn't an even-handed party have already defused its disputes as far as reasonably possible with correspondence equivalent to an adjudication response? Why would such a paragon of fairness need early warning of adjudications?
Is this evidence of the very culture that Latham and legislation intended to ease out of the industry? I think so. Constructing the Team sought, by simple adjudication, to turn the industry's energy towards co-operative, competent construction, to exceed its clients' best expectations. This regressive nonsense, eight years on, makes a compelling case for mandatory legislation as simple and robust as a 30 mph speed limit, something Teflon-coated and devoid of all handholds. The best advice appears to lie in the title: "Don't even think about it".
SJH Stott, Exodus, Northampton, via email.
JCT contracts are too complex
May I congratulate Andrew Pike on his article "Let's ditch the JCT" (15 February, page 54).
One justification for using the JCT form is the oft-repeated mantra that it has been tried and tested by the courts. Another way of putting this is that there is more litigation using the JCT forms of contract than any other standard form.
It is also a strange irony that although it is usually the lawyers who are blamed for drafting complicated contracts, it is, in reality, the quantity surveyors and other professionals in the construction industry who perpetuate the use of this overly complex documentation. As anyone who has been involved in international projects will know, FIDIC and most lawyer-drafted contracts for major infrastructure projects are a lot more concise than the JCT, even though the contract values and project complexity are far greater than the type of project on which the domestic forms are used.
Although contracts cannot be dispensed with altogether, as Egan suggested, they can be greatly simplified; from my experience, there is less likelihood of conflict when the documentation is not only easy to understand and fairly balanced but, also, when the wording concentrates on the positive rather than negative issues – that is to say on what the parties have agreed to do rather than on what happens if they don't do it.
Giles Dixon, Nabarro Nathanson, London WC1.
GC/Works can't handle construction
Vicious things, pike – in a pond where they don't belong. If you are getting along swimmingly with JCT, don't let self-styled big fish intimidate you with threats of a bite from the lawyers.
GC/Works is for government contracts and while it can impose some conditions on the way it does 40% of the UK's construction business, subbies and contractors are reasonably confident that the government will not go out of business. Putting public-private partnerships and the PFI to one side, the same confidence that a large private or even limited enterprise will continue to be able to pay its way can be misplaced. Did you do work for Enron or Marconi?
The JCT has evolved over a long period. It is the preferred way of doing business for construction people because it has been agreed between them and, yes, it is concerned with getting paid. If it's unintelligible to lawyers, be thankful and don't sign one of their experimental (sorry – bespoke) contracts. A lawyer is like a fish out of water as far as construction is concerned. Adjudication can keep them out of the pond altogether, but they don't like that either.
Barrie Moore, via email.
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