When adjudication was in its infancy (at the end of the last century) there was much debate about the how the new process would work in practice, writes Kim Franklin.
One of the many imponderables was the identity of adjudicators. Would they be project managers, certifiers or, as it turned out, predominantly quantity surveyors? One thing most people were sure of at the time was that they would not be lawyers. Michael Latham, who, Prometheus-like, had fired up the process in the first place, would, we were told, be driven to an early grave if adjudication were hijacked by the lawyers.
Fast-forward 10 years and perhaps we shouldn't be surprised to find that, happily, Latham is alive and well, but that adjudication, a formal process for the resolution of construction disputes, some worth many millions, is now regularly conducted and frequently decided by construction lawyers.
Another early imponderable was how adjudications would be conducted. The statutory provisions gave little guidance and left a great deal to the imagination of the parties or the adjudicator. Now that the lawyers have their feet firmly under the adjudication table, are the tried and tested procedures of litigation to be grafted on to the process?
This was one of the questions which arose out of the complex proceedings generated by the M6 toll road.
Midland Expressway Limited (MEL) contracted with the CAMBBA Construction Group, a joint venture comprising Carillion, Alfred McAlpine, Balfour Beatty and AMEC, to design and construct the toll road to provide an alternative motorway route in the Birmingham area. It was completed in December 2003 - since when there have been numerous adjudications and now three decided cases. Not for nothing did Mr Justice Jackson describe the litigation as 'a minefield'. The latest episode, Midland Expressway v CAMBBA (No.3) (Judgment 13.06.06) concerned a claim for the indirect costs of a design change to the road layouts at the intersections between the M6 and the toll road. These layouts were known as 'tiger tails', named after the white lines placed on the motorway to guide converging drivers.
The court endorsed the adjudicator's findings that indirect costs for the change to the tiger tails had not been claimed, were not disputed and could not therefore have been referred to adjudication. The judge also considered whether CAMBBA would have been entitled to withdraw a disputed claim from the scope of adjudication. MEL, relying on the rules in litigation, argued that once a party made a claim, they should stick with it.
The judge pointed out that adjudication was a very different process from litigation.
There was no rule that parties should be forced to press on with bad claims. It would be 'bizarre' if there were.
Adjudication should not, the judge concluded, become a game of chess in which the tactical skill of the players determines the outcome.
Instead, adjudicators should approach procedural issues with both fairness and common sense.
This decision represents something of a victory to CAMBBA and perhaps to Michael Latham's original vision.
Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com