Gillian Birkby ("The ASP with a sting in its tail", 10 May, pages 50-51) identified some areas in which those using application service providers (ASP) to operate their extranets have to be wary. I am concerned that the honeyed words of the marketers have temporarily blinded her to some other, at least equal, dangers.
These systems basically provide an incredibly fast postal service and a free filing clerk. Unfortunately, as is often the case with electro-mechanical systems, they do not discriminate between the needs of different users. Every user therefore may receive all the data on the project, much of which they don't even want, all neatly filed in a format that does not fit their standard filing system. Result: overload and data mislaid – and larger offices may find the problem repeated on several different systems simultaneously.
Buildings usually last a long time and problems can come to light years after completion. Information is then needed about the design and construction process. Birkby identifies the waste involved in duplicating records, but is the user happy that the ASP will provide the information in a form that is acceptable in legal proceedings? The courts now expect storage procedures based on British or international standards, so were they used? Did every user receive a copy of the database and the transaction records at practical completion? Users may be forced to maintain their own paper records to satisfy the lawyers.
Extranets are dangerous animals, but can provide real benefits if handled with care and foresight.
David Whitton, Wren Managers, London SE1.
Tony Bingham is spot on when he repeatedly says adjudication is not a legal but an industry process, and this is reinforced by the recent decision in RG Carter vs Edmund Nuttall (Tim Elliott, 12 April, page 50).
We have had some 90 reported enforcement decisions to date, many of which have appeared contradictory – allowing selective cherrypicking of cases, particularly when it comes to the failure of paying parties to give the five-day notice of intended payment as required by the equivalent HGCRA Section 110 contract clause, or under the Scheme Part 2, paragraph nine.
In the public interest there needs to be certainty as to the process, and what has been lost sight of by the legal fraternity is that an interim valuation is just that. As practitioners well know, it is adjustable next month and adjustable on final account.
The duty of an adjudicator – as an independent third party – is to decide whether Party A did or did not owe Party B say £50,000, on the facts at that snapshot in time. If Party A has received an application complying with the payment mechanism neither the act nor the scheme says it necessarily has to be correct – it is "due" in time only. It is for Party A to challenge it and issue a five-day notice to Party B.
What RG Carter vs Edmund Nuttall tells us is that adjudicators have no jurisdiction to hear different arguments and evidence than that already put at the time the dispute crystallised. In a no-five-day-notice situation, it will now no longer be open to a silent Party A to bring in new evidence to excuse their breach of the act or scheme obligation. Some of us adjudicators have always taken this view, Mr Bingham.<
Jeremy Hackett, Schofield Lothian, via email.
Ducking the issue
I agree entirely with Tim Elliott's article regarding the need for the courts to guide the adjudication process to clarify the rules of evidence (12 April, page 50) Where expert opinions on delay and disruption fit into this matrix is my personal concern (hence "the Caletka report").
How the opinion of an independent planning expert could be determined to be a new claim is beyond me, but I will leave the courts to decide on that one. When a planning expert takes a claim prepared by one of the parties and finds that certain events that were alleged to have been critical delays were in fact not, and that other events represented as non-critical delays, were critical delays, this to me seems to be a matter of opinion to be agreed with, or set aside.
This is the approach many adjudicators take when deciding on delay and disruption claims, with or without expert evidence. We have all seen expert reports submitted in referrals against our clients and usually simply respond and let the adjudicator decide how the report is to be relied on, using their own expertise.
I also wanted to provide an excerpt from the decision to which Tim Elliott refers, because it is has potential implications for adjudication.
"[The dispute] referred to adjudication was the May Claim. That claim was unresolved … It was not a 'dead duck', it was very much a live mallard, even if, unknown to anyone save perhaps Mr Caletka, it was about to be transformed into the swan of the Caletka report."
According to the current ruling on RGC vs ENL, if you are going to submit expert evidence in an adjudication, make sure it is a mallard, because if it is a swan, the adjudicator will have no jurisdiction to base his decision on it.
Anthony Caletka, Keane Associates, London SE1.