Amendment 18: what will it mean?
Most will have heard of it, many will have bought it, and some may even have leafed tentatively through its 60 taupe-grey pages - but stand up those who have read and digested Amendment 18. What does it actually say?
Amendment 18 is designed to ensure that jct80 will comply with the Construction Act, thereby avoiding the scheme. It also adds a few new ideas of its own. Should users wish to incorporate only those amendments relevant to the Act, the jct has resurrected a device used by the pirates of Treasure Island and marked them with a distinctive black spot.
For the first time ever, the jct offers parties to one of its standard forms the opportunity to opt out of arbitration. By deleting 16 innocuous characters in the appendix, those that form the phrase 'clause 41B applies', parties can put behind them over half a century of tradition and agree that disputes will be determined by legal proceedings. The new clause 41C was drafted to overcome the restrictions imposed by the Crouch case. In this respect it has been overtaken by the recent decision in Beaufort Developments. But whether the jct's apparent loss of confidence in arbitration, combined with the unleashing of delay claims from the sole domain of arbitration, will lead to the demise of construction arbitrations is an interesting question for aspirant arbitrators.
If the parties opt for arbitration and leave the 16 characters in the appendix, they will still notice some changes. The traditional arbitration clause has been modified to exclude disputes in connection with the enforcement of any decision of an adjudicator from its ambit. This should ensure that adjudicators' decisions can be enforced summarily in the courts and not by the convoluted and untested procedure described by the scheme.
Furthermore, the jct Arbitration Rules are now a thing of the past: arbitrations will be conducted in accordance with the new Construction Industry Model Arbitration Rules (cimar). Personally I will not shed a tear. Most people concentrated on the rigid time limits imposed by the jct Arbitration Rules and said what a jolly good thing they were. I had always thought that most arbitrators worth their salt could manage the timetable without help from above.
What I particularly disliked was the requirement to serve a Statement of Case, which included all the documentation you relied upon in support of your claim. This required a considerable degree of front-end loading in terms of time and resources (ie expense) when the matters in issue had yet to be defined. Thus a claimant could amass considerable evidence in support of their extension-of-time claim, only to discover, several months later, that the respondent never really disputed the delay, just the prolongation costs.
Furthermore, the requirement to serve all the important documents with the claim only duplicated those documents which, in all probability, the other side already had and would be copied again when a comprehensive bundle of both parties' documents was required for any hearing. If that were not enough, the jct rules also gave arbitrators the new and weighty power to award security for costs without giving them a clue as to the criteria to be used before making such a potentially lethal order.
In this respect cimar is much to be preferred. Not only do the rules dovetail clearly and neatly with the Arbitration Act but they also summarise precisely the scope of the arbitrator's powers. Fans of the jct Rules have not been completely forgotten: the choice between short hearing, full procedure with hearing and documents only has been retained for their benefit.