One matter, mentioned by Tony, is at the core of most problems. A requirement of the Construction Act is that the dispute is referred (that is, what was submitted, the response and why it was wrong). This was reflected in the scheme by the absence of a procedure for "defence", and so on. The courts have now ruled that the dispute must be crystallised and cannot be varied by matters that have not been raised prior to commencement. Referral of the dispute on day one allows the full period for determining the issues (provided that the other party responded). Unfortunately, some of the relevant bodies have issued procedures that have been copied without due thought from the Arbitration Act and require the submission of a statement of case – which is possibly non-compliant with the act – which will immediately extend the date at which the dispute becomes recognisable.
I was disappointed that the scheme did not make adjudicators duty-bound to take the initiative in ascertaining the facts and the law. Their only duty is to make the decision. This has led to too many adjudicators coming to poor decisions because they were too ready to rely on the submissions alone, without making further enquiries.
My suggestions to add to adjudicators' new year resolutions are to start insisting that the dispute is referred and to assume a requirement that the adjudicator shall ascertain the facts and the law (subject to the co-operation of the parties).
This may lead to more adjudicators coming to the conclusion that they have no jurisdiction, or jurisdiction over part only of the subject of the notice. However, I submit, that this will help reverse the trend that is taking adjudication in the same direction as arbitration. Arbitration has been described as litigation in suits; we must not let adjudication deteriorate into litigation without jackets.
Peter Horne, senior consultant, James R Knowles.