It was always about cash flow. That’s what Sir Michael Latham said (and Lord Denning before that). Cash-flow was (and remains) the “lifeblood of the industry”.
Somewhere in the last 12 years the cash-flow message seems to have gotten lost in the complexity and detail of many of the construction disputes that are referred to adjudication. As a consequence, the process that we generally refer to as adjudication is a far cry from the process I believe Sir Michael envisaged when statutory adjudication was but a twinkle in his eye.
That said, every so often a dispute comes along that reminds you what statutory adjudication was supposed to be all about. It happened to me recently. A dispute was referred concerning a disputed valuation of an account, pretty much as usual. The referring party served its notice, I was appointed as the adjudicator and then a referral was served. All normal, no surprises there. However, within the referral, the referring party included a request for a meeting in order to explain its position. The responding party, instead of serving a detailed response, simply sent me a letter explaining why it wanted a meeting, although it did give very brief reasons why it denied the sums were due.
In my view, I could properly deal with the dispute even when the response was so limited. (It is worth remembering that the Scheme for Construction Contracts 1998 doesn’t expressly permit a responding party to serve a response, we just all rather assume there is a right to do so). I also thought there was merit in having a meeting with the parties.
When we sat around the table, the parties explained their respective positions and I was able to obtain a clear understanding of the matters in dispute. I left the meeting thinking that it had been a cost-effective way for the parties to have their dispute adjudicated. The parties had chosen to save their money by not spending time and fees on lawyers writing long submissions, instead the meeting was their way of appealing to the adjudicator’s ability to referee a dispute and make a decision. Both parties really wanted to talk and the meeting gave them an opportunity to do just that.
While this approach may not work every time, it is certainly worth considering that sometimes the devil isn’t in the detail.
