Like many, I was keen to see what the Government would do once the consultation period for the Construction Contracts Bill ended earlier this year. After all, they didn’t draft a Bill the industry wanted the first time around – it was universally criticised – and were said to be having a second attempt at it.
I found out last week, when the latest amendments had their first reading in the House of Lords.
As far as adjudication is concerned, the proposed changes are thankfully short and easy to understand.
I’ve always thought the “in writing” constraint worked to exclude the very people that the Construction Act 1996 was meant to assist. Now the adjudication net will be cast wider. Inevitably there will be disputes (and potentially whole adjudications) about what the terms of a contract are, but experienced adjudicators should be able to deal with those.
The slip rule codifies what practitioners thought the position was in any event, although I note that the rule doesn’t expressly include slips and errors, merely clerical or typographical errors. I assume there will need to be an amendment to the Scheme to bring it in line. It’s good that the express slip-rule applies to England, Wales and Scotland, rather than just Scotland as proposed in the July 2008 Bill.
The prohibition on “Tolent” type clauses is also welcome and, again, this should widen the adjudication net.
On balance, I like the proposed amendments to adjudication. Now the payment provisions, well that’s another story…