An onerous new contract clause forcing specialists to pay all legal fees incurred by main contractors during an adjudication dispute will soon come into widespread use, one industry organisation has warned.

According to John Huxtable, Chief Executive of the Confederation of Construction Specialists (CCS), the outcome of a recent case, Bridgeway -v- Tolent, has opened the door for the clause.

He said that if allowed to spread, the measure could "torpedo" the adjudication procedure, which has so far proved to be extremely beneficial for specialist contractors.

"The decision has sent a very clear message to all upstream parties." Mr Huxtable told H&V News. "I would be surprised if most don’t rush out and add it to their contracts straight away. This measure could spell a temporary end to adjudications."

He added that the ruling was particularly invidious since a sub-contractor could win an adjudication hearing, but still be heavily penalised by the losing main contractor.

Mr Huxtable said that most main contractors were likely to load their legal costs if they knew that they would be paid by the sub-contractor.

"The message we have received from our Members is that most main contractors resent the fact that sub-contractors have the ability to fight back against payment abuse using adjudication. This ruling means that win or lose, the main contractor has the ability to make the sub-contractor suffer."? Mr Huxtable added that the court’s decision was a major blow to the effectiveness of the Construction Act.

He said that there had been two particularly helpful measures to emerge from the Act – the right of the sub-contractor to suspend work, and adjudication – but that both had now been undermined.

The CCS has found that lawyers representing main contractors have managed to nullify the right of specialists to suspend work by insisting they provide at least twenty-eight days warning, rather than the seven originally stated.

Mr Huxtable explained that main contractors have also insisted that sub-contractors resume immediately if they do suspend work; which means the company has to wait in readiness by the site or incur penalties. Any costs incurred during that time also have to be paid by the sub-contractor.

"This renders the right to suspend almost useless."

However, Mr Huxtable also felt that a few simple changes to the Act should be simple to implement and could significantly tighten the law.

"We are also urging Members not to agree to these terms. However, the reality is that many do because they want the work."