I am absolutely delighted with this baby's performance in its first year, its existence and its future. Happy birthday, and many happy returns. It has changed the face of construction. Most of all, and this I love, it has managed to confound a heap of lawyers.
A year ago, these folk fell about laughing, and went skipping about, saying "it won't work"; "it can't be enforced"; "it doesn't comply with human rights". They were all wrong. Do you know why? Because lawyers are not builders, and it is you builders who understand the Construction Act.
You builders got totally fed up with the lawyers' idea of dispute management. Litigation had become so bogged down with gamesmanship that it was in need of total reform – and will be reformed from 26 April 1999. Arbitration had been manoeuvred by lawyers to be just like a court process. We call arbitration "litigation in suits". None of this served construction's interests. Ask anyone who was owed money or other remedy how good litigation and arbitration is, and they will give you a load of old lip.
So, the building industry itself took a hand and invented adjudication. Don't let any lawyer tell you that it doesn't work, or is half-baked, or wants for sanity. They have never been a builder who was owed money.
In the past year, I have asked more than 2000 construction people if they wished new adjudication and the new payment provisions had never been born. Those against the act amounted to 1%. Ask the lawyers, however, and they dither and quiver.
Adjudicators will play fair. Parliament never intended to pass into law a device that allows one party to mug another
Now, this act has several hidden qualities. Its strength is supposedly adjudication – but be sure to recognise the beauty of its payment provisions. Look back at some of the things said about them on these pages. Look at the guidance note by the RICS. Please don't boob; use the green, amber and red notices so as to comply with the provisions. You may be legally entitled to withhold money, unable to do so if you haven't given the amber notice outlining your reasons for hanging on to your cash.
As for adjudication, don't play the ambush game. The adjudicator will be on to you, and whether right or wrong, is likely to boot out anyone who refuses to extend the 28-day timeframe.
Don't forget, either, to canvass the dispute with the other party before you call for a referee. Remember that when referring something to the ref, you refer not just your side of the tale, but the whole story, as that is what the dispute is about. Oh yes, and if you are on the other side and try to introduce a defence or counterclaim that has not been previously discussed or argued, the adjudicator has no jurisdiction. You will get it thrown out. Begin a new adjudication.
As for trying to bring a big complex claim via an adjudication, don't bother. You will be thrown out. Adjudicators, whether you like it or not, recognise something called "being fair". Have you heard of being fair? Yes, they apply the law all the time, but they will not tolerate unfair shenanigans – parliament never intended to pass into law a device that allows one party to mug another. Tish, tosh to the lawyers who say the adjudicator must decide one way or another. The adjudicator is a human being who will play fair. Be warned.
And there's more. There is ample evidence that as soon as one side makes a suggestion of calling for a referee, someone will say "let's talk", and that is the playing field levelled. Do you know what else? Instead of people playing the claims game, they know full well an adjudicator will dismiss claims of pure bull. And, in due course, as the baby grows up, year by year the focus will turn from disputomania back to building. Hurrah.
Tony Bingham is a barrister and arbitrator specialising in construction.