Not what the doctor ordered
Tony Bingham argues that the adjudication system set out in the Construction Act has been warped into something way more legalistic
The Construction Act was 20 years old on 1 May 2018. It all came about in 1998 because our industry had a nasty habit of finding iffy reasons for holding onto the other fella’s cash. So we invented snappy payment rules. Then we asked what ought to be done if the payer didn’t keep to those rules. Yes, we could go to court or go to arbitration and force the blighter to fork out. Tosh! Going to court or to arbitration in 1998 was like exchanging a clock for a calendar: too slow, too expensive.
So we invented the 28-day snappy-chappy adjudicator: up popped a QS to rummage around, poke at the other QSs and decide who would get to have that cash (or something near it). And that rummage by a QS with an appetite for refereeing would only cost a few bob back in 1998. It was no different from a QS valuation, save that this QS was an outsider to the project – and save that this QS decision was to be obeyed. If it were not immediately obeyed, the High Court would deliver a flea in the non-payer’s ear.
Some folks didn’t go much on all this in 1998. The industry loved it, but lawyers scoffed at it. The lawyers were fond of construction disputes, they were “meat and veg” to many a practice, especially when the dispute was litigated. But this 28-day malarkey was laughable, they thought: how on earth could a construction dispute be resolved in a stupid 28-day sprint from beginning to end?