Adjudication 20 years on - time for a change?
The HGCRA turned 20 this month, making some of us feel very old. I remember when it came in, and the feeling of hope that came with it for a sensible way of resolving construction disputes.
It had teething problems, as would be expected, but the concept of fast (if sometimes a bit rough) justice was to be welcomed. Sadly, it didn’t last. From the very first adjudications to now, the practice has changed so much as to be unrecognisable. Jurisdictional challenges, justifiable or otherwise, are now the standard first reaction to a notice of adjudication, and the introduction of new arguments and evidence in the Reply, Rejoinder, Surrejoinder etc goes unchallenged, and the difficulty is that if one side does it, then the other side also has to.
By doing this parties are ignoring the Act’s intentions of providing an interim solution through fast (and slightly rough) justice, and are thereby removing its usefulness to the very companies that most need it. Adjudication was never intended to provide an alternative to the comprehensive exploration of issues and liabilities led by a very learned TCC judge. It was supposed to provide temporary, but binding, decisions about payments to get the supply chain paid. With the current system, the very people that adjudication was supposed to help – smaller contractors and sub-contractors – are excluded from using it because the costs of adjudication are neither recoverable nor proportionate to the value of the claim. A £30k dispute cannot be economically adjudicated any more than it could be economically litigated with proper legal advice and adherence to the Pre-Action Protocol.
In an article in the 11 May edition of Building, Tony Bingham @buildingnews makes a series of good points about adjudication. He is of the view that adjudication has warped into a full-blown legal process – what he memorably calls “adjudication on Viagra”. I can’t disagree with his comments, but I would go one stage further: adjudication has had a good innings, but perhaps it’s time to consider a change?
For more information on adjudication, please contact Derryn Rolfe, or you can give us a call on 0345 070 6000