21-12-2021
As Arbicon notch up another almost weekly victory using adjudication, the
latest being circa £800K plus Adjudicator’s costs, interest and VAT payable by
the other party, which is not an unusual sum that we deal with, I wanted to
reflect on the achievements of our firm in the past year and indeed the past 23
years since adjudication was born. I should not admit it, but I was there at
the birth!
What I find surprising, is despite the success of the process there are
many construction firms that have no idea what it is or who to represent them.
I find myself teaching people all about the process every day and it always
ends in huge enlightenment for the enquirer.
It has been interesting how construction adjudication over the past 23
years has evolved, the statutory right to use the process, which determines the
rights of the parties, is now the norm for most parties in dispute. Before and
at the outset back in 1996, the construction industry was rife with injustice
and bankruptcy, the Courts could not cope, arbitration and Court was expensive
and longwinded. Adjudication to the rescue. It was envisaged and designed to be
an informal, non-lawyer, no court affair for construction folk to sort out
their squabbles with a legally binding result in just 28 days. It was not long before
enforcement proceedings in the Technology and Construction Court (TCC) began happening
and the conduct and procedure of the Adjudicator started to be meticulously
scrutinised leading to a well drilled and groomed process offering a lower cost
and time to resolve disputes than any other process that determines rights out
of Court. There are thousands of adjudications each year now, and over the years
there have been hundreds of enforcement cases, mainly settling the law on the
adjudication procedure and interpretation of the Construction Acts. It is in my
opinion though still a process only for construction folk, who have their own
language and vast specialist knowledge. That is reflected in the most used and
successful adjudicator nominating body being the RICS, who appoint adjudicators
mainly with a Quantity Surveying background. Quantity Surveyors are the least
understood professionals, they are multiskilled, cost valuers, construction experts
and contract lawyers rolled into one and at an advanced level they are adjudicators.
It is essential but not a legal requirement to have all these skills, by that I
mean there is perilously non-construction folk adjudicators out there, who we
dread. The law should require an adjudicator to be an Expert in the field as
arbitration does, such as a chartered construction professional, with more than
15 years of experience in construction practice and can measure and value
construction costs and time delays, if not they should not be appointed. You
can see why the RICS is first choice as you get this standard from them.
Through the years it always interests me who parties appoint when they
face justice with us against them. I have concluded that, when it comes to
unfamiliar territory or those who keep making the same mistakes, the “iceberg effect”
applies. It is about beliefs. I do not blame them, people see the small chunk
of ice above the waterline and believe in it and not what is underneath.
Realisation comes too late when the huge chunk below the waterline comes home
to roost and they lose. The mistakes are not taking experienced advice and
appointing the wrong kind of representative, many of whom have never set foot
on a building site or have any construction qualification. You need a lot more
than someone who can read a JCT contract. I have seen cases where the other
party and /or their Claims Consultants have appointed “high ticket price” London
solicitors and barristers and an Expert Witness against us, but the expertise
and background is essential. There is no such thing as “I don’t care how you do
it just get me out of this problem”, I always say “it is what it is”, the
advice will give you the Experts’ view, risk and strategy and whether you
should proceed or deal commercially with the case. We tell you how it is.
The adjudication process is short, only 28 days in most cases, so you
have to be prepared and obtain the right representation, who not only
understand the law of adjudication practice and procedure; are Experts in construction
with more than 15 years of experience on the tools as a Quantity Surveyor and
continue to accumulate that expertise; and also qualified in some form of
dispute resolution role such as an Arbitrator, Adjudicator, Mediator, Expert
Witness or perhaps some other form of law qualification such as a Masters in
Construction Law. Added to all of that, natural lateral thinking skills and experience
as an advocate in adjudication and you have the perfect choice. The Arbicon
team have all of this and work together to sharpen the sword, with success in a
large number of claims of differing values in 2021, of up to £1m.
Arbicon will be expanding its team further in 2022 with the aim of further success and continuing to be the force to be reckoned with, to contact our team please email advice@arbicon.co.uk or call 01733 233737.
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