Harvey Mason, Liz Minshull,
Rachel Ansell
15 April 2003
To depart from our usual format, on 15 April we held a debate into current problems with construction adjudication. The meeting was chaired by our new chairman, Harvey Mason, and the panel comprised Liz Minshull, solicitor from Shadbolt & Co, and Rachel Ansell, counsel of 4 Pump Court.
I hope everyone will accept that there are problems in reporting on a debate, without a full transcript. I will therefore attempt to show the flavour and content of the meeting and say that if you wanted more, you should have been there.
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The first and major topic was on jurisdictional matters and whether they were raised with the intent to provide grounds for resisting enforcement.·
Was the constricted time scale a problem and do parties recognise these constraints on the adjudicator?·
Does adjudication give a proper airing of views?·
Should adjudicators declare with their terms that they intend to use assistance?·
Limiting volume of documents. Adjudicators appear to prefer to say that a case has not been proven rather than restrict documents.·
Perception of adjudication. Defined in the Act, then in the contract, then by performance.·
Is there a trend in respect of ad-hoc agreements?·
Adjudication is developing into categories according to size and complexity.·
Re-defining the purpose of adjudication. Brought in to help cash flow – getting an interim decision. Now being used for final settlement.·
It can only be rough justice and the bigger the amount the rougher the justice.·
There is a first need to identify the dispute.·
The parties who made long arbitrations now make long adjudications.·
Adjudication has opened up a method of resolution to parties who could not obtain their rights otherwise. Adjudication gives access to get your money quickly.·
The threat of adjudication can solve the problem.·
RJT is probably a good decision (see my comments on page 23 of News & Views issue 51).·
There was some disagreement over VAT and how it should be dealt with in adjudication. Care needs to be taken to ensure that the VAT liability on any sum awarded can be identified.[Subsequently, I have a further thought –should the adjudicator give a different direction if the contract includes provision for VAT (e.g. standard forms) as against being silent?]