Adjudication review at last, but are we asking the right people?
What is wrong with adjudication? Until now, writes Kim Franklin, such a question would usually provide a platform for the pro- or anti-adjudication lobbies to vent their spleen in glowing, or vehement, terms depending on their perspective, and heaven help you if they had a glass of something intoxicating in their hand at the time.
In April of this year, the chancellor announced, as part of the Budget, that the government would conduct a review of both the payment and adjudication provisions of the Housing Grants, Regeneration and Construction Act 1996. The architect of the act, Michael Latham, was appointed to lead the process. The Department of Trade and Industry set up a pan-industry review group with two working groups - one for adjudication and one for payment - to conduct a wide-ranging and detailed consultation process.
At last there is some purpose to questioning adjudication and various interested bodies are being asked their views.
Those who are thrilled, or dissatisfied, with the process need no longer mutter darkly into their cups. Now they have an opportunity to speak up and be heard.
What they do say, will, in my view, depend largely on who they are and what interest they have in adjudication. Those who may have views fall roughly into four categories:
l those whose disputes are referred to adjudication. These fall into two sub-categories: those with a claim (the referring party) and those at the wrong end of a claim (the responding party);
l those who decide the disputes (the adjudicators);
l those who act for the disputing parties (the lawyers);
l those who have an academic interest in adjudication (the commentators).
Let's take, for example, the topical issue of residential occupiers. The act expressly excludes contracts where one party is a householder from the adjudication process. Should the legislation be extended to include them? Here is how our various lobbies might respond.
The referring parties (in this case, invariably contractors): 'Yes, of course, we want these disputes decided quickly. None of this snagging list nonsense, and the 'you used my daughter's Barbie bin to mix concrete in' or 'you said you'd be finished by Christmas' excuses for non-payment.
Get an adjudicator in and let's get paid.' The responding parties (usually the householder): 'Adjudi-what? I don't like the sound of that. Would we need representation? How much would it cost? Could the contractor serve us with a notice just before we leave for the family holiday?' The adjudicators: 'I suppose so. I had thought that I would be required for high-value claims by commercial contractors, but someone has to decide these householder disputes and I would rather the work came to me than went to a judge or an arbitrator.' The lawyers: 'Yes please! It's just the sort of work we need for our junior fee-earners. Disputes are always messy and there is a real need for hands-on lawyer involvement. Expensive? Well? maybe.' The commentators: 'Good grief! The process is unfair enough without foisting it on the inexperienced, non-commercial householder.' No surprises then that when the Technology and Construction Courts Solicitors Association (TeCSA) was asked its views, it did indeed believe that the legislation should be extended to include residential occupiers. Of equal interest was its view that adjudicators should not be allowed to exercise a lien over - that is, hang on to their decisions - pending payment of their fees. A view which, one imagines, few adjudicators would share.
All this demonstrates that those with the most strongly held views about adjudication, and who are best placed to take part in the consultation process, will be those who, to some extent, derive their living from it. The people whose views the government really needs to canvass are the wideranging and disparate end-users, and these will be much harder to access and collate.
In the meantime, the publication of the consultation paper is expected this month, with a deadline for responses in December 2004. Those with views - adjudicators or otherwise - are invited to express them via the RIBA's Dispute Resolution department by email at adjudication@inst. riba. org Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers. Visit www. crownoffice chambers. com