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On straw polls, grass roots and the value of adjudication

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Another cartoon has caught my eye. It was in The Spectator and it depicted the outside view of a tower block taken from a jaunty low angle. A voice from one of the upper floors was saying: 'I love it up here, it's so far away from our grass roots'. The caption read simply 'Millbank'.

Sometimes it feels a bit like that at the Bar.

Here in chambers, we only find out about what is really going on in the commercial world if something goes wrong. Then we are sent scurrying to the documents and the text books to discover how best to put things to rights. Inevitably, one's perspective becomes somewhat jaundiced. Fed up with my particular role as Cassandra, lamenting the inevitable fate of adjudication from the battlements, I decided to do a straw poll to find out what the grass roots think of it. I took a random selection of some of my professional acquaintances encountered during the week and asked them the question, 'Is adjudication a good thing?'

James Bessey, construction solicitor with Edge & Ellison's London office, rang me to discuss his dissertation for the MSc course in construction law at King's College. He thought that adjudication had distinct advantages over litigation and arbitration. It did not lock the parties into lengthy formalised disputes. It offered better recovery on an interim basis. Whereas the courts would discount any interim payment to reflect the fact that the applicant may not ultimately be successful, an adjudicator would make a decision on an all-ornothing basis. He welcomed the courts, no-nonsense approach to enforcement as demonstrated by the Macob and Outwing cases. He pointed out that the Technology and Construction Court's (TCC) draft pre-action protocol (of which more later) favoured adjudication and encouraged disputing parties to exhaust the adjudication process before considering litigation.

Subsequently I was at the RIBA sharing the platform with John Rushton from the construction department of well-known commercial solicitors Rowe & Maw. I learnt that in his experience adjudication was a good thing, particularly for straightforward cases where the parties are prepared to accept an element of rough justice.

Many disputes, which would have festered in the past, have been resolved either by the adjudicator's decision or under the threat of an adjudicator being appointed. Interestingly, he concluded that adjudication may be effective, but unfair: there is no express obligation on an adjudicator to act fairly and the tight deadlines are intrinsically unfair, particularly to the responding party. More surprisingly, he said it was not necessarily cheap.

Large claims take time and money to prepare even if they are to be processed in a short time.

Earlier I had cornered Dominic Helps, a solicitor with the niche construction practice Shadbolt & Co, at a meeting of the Society of Construction Law. TCC Judge Anthony Thornton had given a whirlwind presentation on the unlikely subject of construction litigation and the forthcoming Human Rights Act (of which more later). Judge Thornton believes that the Act, which among other things gives everyone the right to a fair trial, will affect all forms of dispute resolution, particularly in those situations where justice is dispatched in a rough and ready fashion after a truncated hearing or on a documents-only basis. This may have unexpected implications for construction disputes, and the chair for the evening coined what must be the catch-phrase of the millennium: that henceforward the TCC would specialise in 'bytes, sites and rights'. Dominic responded to my question in his usual inimitable style: 'Is adjudication a good thing? It's the best thing! And I can't bear the suggestion that it may be scuppered because somehow it is contrary to natural justice or the European convention on human rights'.

You may find the results of this straw poll quite revealing. For a start, although I descended from the ivory tower, despite the best of intentions, I never made it down to the grass roots and spoke, for example, to a builder. Instead, I seem to have got lost somewhere on the mezzanine with the solicitors. Furthermore, from this snapshot of the week, you can see what an interesting social life we construction lawyers lead.

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