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Some surprising results from the first 40 months of adjudication

legal matters

Anniversaries are often used as an excuse for retrospection. The Golden Jubilee is a good example. During this year's celebrations, the past 50 years have been depicted and analysed.

Equally, however, it seems that some reviews cannot be carried out without an anniversary to justify the process. Hence any new government's performance is reviewed after its first 100 days, just for the sake of it.

Three-and-a-third years might not seem much of a reason to carry out an in-depth review. Nevertheless, the Construction Industry Council's (CIC) report into the first 40 months of adjudication under the Construction Act makes interesting reading.

The CIC approached 17 Adjudicator Nominating Bodies (ANBs) and compiled a list of all adjudicators practising in the UK. For scholars of the Book of Revelations, they identified the number of 666. Of these, 302 provided information about adjudications conducted between May 1998 and September 2001.

The CIC report processes the results of 5,000 adjudication appointments, of which a little over 3,500 proceeded to a decision. These are some of its findings:

Two of the main fears for the future of the process have, the CIC concludes, proved to be unfounded.

Adjudication has not been derailed by the lawyers. It is working smoothly and is supported by the judiciary. Further, adjudicators have not been overwhelmed by demand for their services. Only 15 per cent of an adjudicator's available time is actually spent on adjudications.

The majority of adjudicators (76 per cent) spend less than 40 hours on any adjudication.

The median level of fee rate being charged at the end of 2001 was £80-£100 per hour.

Most adjudications (78 per cent) concern disputes involving less than £200,000.

Most adjudicators (46 per cent) are appointed by the RICS. Other significant ANBs include the RIBA and the Chartered Institute of Arbitrators.

The larger proportion of adjudications are conducted on a documents-only basis.

For most referring parties, the experience was worthwhile. In 68 per cent of cases, decisions 40 have been given in favour of the referring party.

The CIC has also produced a guidance document dealing with a number of specific issues arising out of the report. It sets out some tips for adjudicators as to how to deal with various hurdles. These include challenges to jurisdiction, intimidating tactics and unmanageable documentation. Adjudicators are urged to ask themselves, 'Am I acting fairly?' and told that to avoid allegations of bias, they must both be fair, and be seen to be fair.

Adjudicators are reminded that they are in control of the procedure and should counter 'bullying' tactics firmly but fairly. They are not obliged to consider all the documentation submitted by either party but only relevant material.

They should consider limiting submissions at the outset and invite the parties to provide concise statements of case, cross referenced to supporting documentation and a chronology.

Given that adjudication has become such a by-word for construction dispute resolution, the figures may produce some unexpected conclusions.

You can do anything with statistics, but if the 302 adjudicators who responded to the survey, spent on average less than 40 hours on each of the total of 3,500 adjudications carried out over three years, it is something of an understatement to say that adjudicators have not been overwhelmed by demand for their services.

Furthermore, applying the median fee rate of £90, it is possible to calculate the average annual fee income generated by adjudication work. This, coupled with the fact that most adjudicators are only employed for 15 per cent of their adjudicator time, leads one to wonder what can attract them to the job, which has to be carried out to strict deadlines and regularly involves allegations of bias, unmanageable quantities of documentation and bullying tactics from the parties.

But if you are still interested, the CIC's 'Guidance for Adjudicators' can be downloaded from www. cic. org. uk/information/Whatsnew/ whatsnew. htm

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