REUTERS | Sukree Sukplang

Guide me O thou great redeemer

What a brilliant hymn this is (and I’m not even Welsh…). Even if you haven’t stepped inside a church for some time, you can’t have missed its inclusion in the 2011 wedding of Prince William and Kate Middleton and the opening ceremony for last year’s London 2012 Olympic and Paralympic Games.

We could all do with some guidance at times, especially in the often uncertain world of adjudication. So who are our “great redeemers” when it comes to adjudication guidance?

PLC Construction

Well first and foremost, we have PLC itself. For those of you that subscribe to PLC Construction, there are numerous practice notes (written by Lynne McCafferty and PLC Construction) that provide guidance, not to mention the standard documents, checklists, legal updates and articles which are also of assistance.

However, in the interests of fairness I thought it only right that I should mention that there are other “great redeemers” out there.

Professional bodies

When it comes to professional bodies and the like, in my opinion, the main guidance comes from five sources:

  • Construction Umbrella Bodies Adjudication Task Group (CUBATG) guidance.
  • RICS Guidance Note on Surveyors Acting as Adjudicators (3rd edition).
  • Adjudication Society and CIArb Guidance Note on Jurisdiction (2nd edition).
  • RIBA Good Practice Guide to Adjudication.
  • ICE Guidance for Users of Adjudication.

CUBATG’s guidance

CUBATG has representatives from the main professional bodies and organisations whose members have an interest in adjudication, so arguably its guidance should be of most relevance to those involved in adjudication.

However, its guidance is now 11 years old and its Users’ Guide to Adjudication is only one year younger. Consequently, neither document reflects current case law or the amendments to the Construction Act 1996. That said, the Users’ Guide sets out clear and basic guidelines and can certainly still be of assistance to parties with limited knowledge of the process. I sometimes send a copy to unrepresented parties despite its age.

RICS’ guidance

I wrote about the third edition of this guidance note in September 2012. While its aim is primarily to assist surveyors acting as adjudicators, as Sir Vivian Ramsey says in his foreword, the guidance note:

“should be essential reading for all adjudicators and not just Chartered Surveyors”.

I may be a little biased (having been involved in the third edition), but I think the guidance note offers some very sage advice.

Adjudication Society and CIArb’s guidance

This is the “newest kid on the block” as the second edition (dated December 2012) was only published earlier this month, on 4 January 2013. I blogged about the first edition in July 2011, and the amendments simply bring it into line with the amendments to the Construction Act 1996.

This guidance note includes an interesting section on when the contract was entered into, that is, pre or post 1 October 2011. It acts as a reminder that when letters of intent, offers and counter offers are taken into account, determining the date of the contract might not always be as simple as it seems.

RIBA’s guidance

The RIBA’s Good Practice Guide to Adjudication was published in November 2011. Unlike the guidance produced by RICS and the Adjudication Society/CIArb (which are detailed and require some pre-existing knowledge of adjudication), the RIBA guide is an easy to follow step-by-step guide. It is designed to assist construction professionals with little or no knowledge of adjudication. However, in my view, it would be equally helpful to other parties with no knowledge of adjudication.

It contains useful precedents for all submissions.

ICE Guidance for Users of Adjudication

The ICE’s Guidance for Users of Adjudication is short and punchy, weighing in at only six pages. However, it nevertheless covers all of the essentials.

The only downside is that its purpose appears to be as much about promoting the ICE as a nominating body, the ICE panel and so on, as it does about educating users about adjudication. It might therefore be of little benefit unless a user is looking to appoint an adjudicator from an engineering background.

Eminent authors and leading text books

Moving on to the books, we have a mix of specialist texts and sections in construction law practitioner texts, including:

  • Coulson on Construction Adjudication (2nd edition).
  • Construction Adjudication by John Riches and Chris Dancaster (2nd edition).
  • Keating on Construction Contracts (9th edition).
  • Hudson’s Building and Engineering Contracts by Atkin Chambers (12th edition).
  • Construction Law by Julian Bailey (1st edition).
  • Construction Contracts: Law and Practice by Richard Wilmot-Smith QC (2nd edition).

Coulson on Construction Adjudication

In terms of the law of adjudication, Sir Peter Coulson’s book is the “bible”. As Jackson LJ said in his foreword:

“If practitioners on both sides of litigation consult this work, they will rapidly be guided to the relevant principles and will, hopefully, be assisted in settling their differences.”

While it was published almost a year before the amendments to the Construction Act 1996 came into force (in October 2011), the amendments had been known and they are addressed throughout the book. It is worth noting that, to date, we haven’t seen any new case law on those amendments.

Construction Adjudication by John Riches and Chris Dancaster

This book is to the practice of adjudication what Coulson’s book is to the law of adjudication.

It covers issues such as the adjudicator’s appointment, the process and the decision in some detail. The only problem is that it was published in 2004, although I understand that a third edition is currently in production.

Keating on Construction Contracts

Chapter 18 covers both adjudication and the payment provisions of the amended Construction Act 1996 and, like the rest of this well-established practitioner text, manages to convey all of the essential points with brevity and great clarity.

Hudson’s Building and Engineering Contracts

Chapter 11 explores adjudication in some detail, both in the UK and other Commonwealth jurisdictions (including Australia). It has a detailed and logical section on the procedure of UK adjudication, including some very useful illustrations.

Construction Law by Julian Bailey

Chapter 24 of this three-volume construction law tome also has detailed guidance on UK and international adjudication.

It’s clear that the author has given this section a great deal of thought and, as well as the obvious issues, he has also dealt with some less obvious, but nevertheless very interesting issues. For example, the effect of a company going into administration, the removal of the adjudicator, the adjudicator being functus officio and the fraudulent conduct of one or both parties.

Construction Contracts: Law and Practice by Richard Wilmot-Smith QC

Chapter 23 of this construction law manual is very well written. It follows the process of adjudication, from the Notice of Adjudication, through the submissions and finishes with enforcement.

Forgive me if I have failed to mention any guidance from other professional bodies or eminent authors (I will clearly get no Bread in Heaven…), but feel free to add them in the comments section below.

One thought on “Guide me O thou great redeemer

  1. As I suspected, waiting in my inbox this morning were a couple of emails pointing out the guidance I had missed, in particular the loose-leaf guidance such as Building Contract Disputes:

    – Practice and Precedents, edited by Robert Fenwick Elliott and Jeremy Glover. Not only does this set out procedures and precedents for adjudication, it also provides a very useful commentary. However, the biggest advantage it has over the other guidance is that it is updated three times each year so you don’t have to wait long to read about new cases, etc.

    – Emden’s Construction Law is also loose-leaf with regular updates.

    I should also add that adjudication cases are also often reported, together with commentary, in the Building Law Reports, Construction Law Reports and Construction Industry Law Letter.

    Feel free to add more…

Leave a Reply

Your email address will not be published. Required fields are marked *