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Editorial By the time you are reading this it will be September, traditionally the time associated with going back to school after the long summer break. For those of us involved in dispute resolution, or at least construction dispute resolution, it is also the time when traditionally, perhaps when parties and their legal representatives having come back fresh from their holidays and begin to think about claims, defences and counter claims. A least that is true of construction adjudication, according to the research conducted over the last few years by Glasgow Caledonian University. That research shows that there is an annual cycle reflecting the number of adjudications carried out which is at its lowest in mid September, rising to mid November, declining to mid December, rising slightly again in January and after dipping between February and May, rising slightly again in June. This activity peaks around mid March, July and November and despite what we are led to popularly believe about ambushes taking place over the Christmas period this is not borne out by the statistics which show that in December the number of adjudications decreases to one of its annual minima. So, by the time you are reading this all of you involved in adjudication will be readying yourselves for the Autumn busy season, no doubt after having returned fresh from your own summer holidays. As an adjudicator it seems to pay to take your holidays in September, January or April, the quietest months. Despite searching I can find no such comparative data for arbitrations or mediation. Perhaps someone can help with some statistics about this and it might be interesting to compare the apparent seasonality of adjudication with that of other forms of dispute resolution. Thinking of adjudication, the current consultation paper concerning the proposed changes to the Construction Act includes a provision that would allow oral and partly oral contracts to be adjudicated upon. This backlash against the well known decision in RJT Consulting Engineers Ltd v DM Engineering Ltd looks set to make the adjudicator's life even busier, with more disputes falling within their jurisdiction and no doubt more arguments about what was agreed orally. In my view this possible change to the legislation does nothing to encourage the construction industry to make sure its agreements are clearly expressed in writing, which ought to be a good thing, because this is something it has traditionally been very bad at doing. In fact it appears that in most cases all but the very smallest projects are evidenced at least partly in writing and the proposed change is more to do with making sure that projects that have at least some of the essential terms of their contracts in writing do not fall outside the adjudicator's jurisdiction. I think this will simply create even more disputes about what was understood to be agreed. As things stand at present, if the parties do not make the effort to make their intentions clear and then write them down then they lose their right to adjudication, which ought to be an incentive to make sure agreements are properly recorded. Still, the proposed changes, we are told will not be made through the use of the Regulatory Reform Order, but instead require primary legislation. It is uncertain whether this or any future government will find time in its busy legislative schedule to fit this in, if so the consultation could all be in vain. Murray Armes |
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