Practical Law

It’s a few years since Jonathan wrote about the conflicts avoidance panel (CAP) that TfL and RICS developed for dealing with disputes on London Underground station redevelopments, including redevelopments as a consequence of Crossrail, to effectively ensure that disputes could be “nipped in the bud” at an early stage. It’s hard to know how successful the CAP has been in achieving its aims but, one thing is sure, it hasn’t helped the Elizabeth line (as Crossrail is now known) open on time, and it hasn’t addressed two of Jonathan’s bug bears – getting people to move down the carriage when it’s busy or standing out of the way when they are in the doorway to let others off and on (although COVID might have helped with both of those!).

Similarly, Network Rail’s Dispute Avoidance Panel (DAP) is being used to avoid disputes on the programme of works on the rail network, and is something that Paul Cacchioli has discussed a number of times. He referred to the DAP acting like a “seasoned team of expert fire fighters” being able to spot “smouldering embers of a dispute in the dry grass and inviting others to take action to ensure a fire doesn’t start”.

However, it is probably fair to say that both have raised awareness of the need to resolve disputes before they become disputes (back to Jonathan’s buds or Paul’s embers) and have led to a number of initiatives, including the Conflict Avoidance Pledge that was officially launched in early 2018, and which seems to be gaining momentum. 

Conflict Avoidance Pledge

The Pledge was created by the Conflict Avoidance Coalition Steering Group, which comprises the International Chamber of Commerce (ICC) working together with industry bodies (such as RICS, ICE, RIBA and ICES), dispute resolution organisations (like CIArb and DRBF) and major employers (including TfL and Network Rail). The Pledge is set out in full on RICS’ website.

To date, the Pledge has been endorsed by the Construction Leadership Council (CLC) and there is an impressive list of partners who have signed up, which you can do at a gold, silver or bronze level (again details are set out on RICS’ website).

Perhaps most importantly, in December 2020, the pledge was endorsed by the Cabinet Office when it published its Construction Playbook. The Playbook says contracting authorities in all public works contracts should adopt the appropriate provisions as a standard clause and use the mechanism to resolve problems before they escalate into disputes:

“The [Pledge] captures the ethos of working collaboratively and the use of early interventions techniques, reducing costs and supporting projects and programmes to be delivered on time and in budget.”

Consequently, I suspect we will start to see the Pledge referenced more and more.

One wonders what impact (if any) this will have on adjudication. After all, we all know that adjudication isn’t something that parties to a construction contract can contract out of, but whether parties refer a dispute in the first place is still (by and large) discretionary. If parties are committing to resolving issues before they become disputes, perhaps we will see a decline in adjudication referrals, and perhaps this is something that is happening right now. For example, anecdotally I’ve heard that the CAP has reduced dramatically TfL’s legal spend on adjudication (I’m sure someone said it was in the region of 90% less, which is a startling figure if true).

Indeed, my own experience of being involved with a CAP is that it was less formal and I felt part of the project team and, although the CAP decisions or recommendations are non-binding, they are invariably complied with. It seemed to work where the market is small and a continued relationship is important.

There is a general shift in the market away from dispute resolution to dispute avoidance. TfL’s CAP, Network Rail’s DAP and the Pledge are all part of this movement, which is also reflected in the standard form contracts, with both NEC4 and FIDIC 2017 embracing language that places the emphasis on avoidance. Perhaps finally, disputes aren’t seen as a dirty word, but more of a project problem that needs managing.