Practical Law

Happy new year everyone.

Once again I am reflecting on what I’d like to see and, looking at my 2022 list, I think I could probably include all of them again apart from three:

• Clarity regarding starting a true value adjudication when you haven’t satisfied a smash and grab obligation (because that one has been sorted out by O’Farrell J in Bexheat Ltd v Essex Services Group Ltd and Roger Ter Haar QC in AM Construction Ltd v The Darul Amaan Trust).
• A return to normality. Well, just when we thought we were beginning to move past Brexit and the COVID pandemic, Russia invaded Ukraine and turned the world upside down again. I’m not sure I know what “normal” is anymore, so how can you wish for it??
• West Ham qualifying for Europe again (and more on this later).

However, as I also predict some of my 2022 wish list will be realised in 2023, I’m not going to repeat them. Instead, here are some other things I’d like to see:

• An increased sign up to and adoption of the conflict avoidance pledge and similar measures, and the use of experienced dispute resolvers to avoid what we all know are formal, expensive and relationship-harming dispute resolution procedures (I am an ambassador after all!)
• Moves towards developing an enforcement regime for dispute board decisions in international construction disputes. Is it time for an UN/international convention (a bit like the New York arbitration and the Singapore mediation conventions)? This would give dispute boards more teeth and avoid the “going through the motions” or “just a step towards arbitration” behaviours we sometimes see.
• Mandating experienced adjudicators on adjudicator nominating bodies (ANBs) to take suitably qualified pupils. The idea is to address some of the age, gender and diversity issues the industry faces.
• More action and less talk regarding addressing building safety issues at a practical level. Training and knowledge awareness is key, as is a change in attitude. We need collaboration rather than the current blame culture, and we need to avoid the “race to the bottom” that currently exists. Everyone should take a look at Professor Mosey’s work in this regard.
• Increased participation from users and the non-participating ANBs (you know who you are!) in the King’s College and the Adjudication Society annual survey. This is a valuable asset.
• Amending the Construction Act 1996 to remove the section 105(2) exclusions (such as power generation) from the scope of construction operations. Jonathan suggested these be consigned to Room 101 almost nine years ago! Alternatively, for those actively involved in excluded industries to expressly include in their contracts a right to refer all disputes to adjudication. We all know how much time and effort is involved (and wasted) when it comes to resolving disputes under hybrid contracts.
• The construction industry to play an important role in the pathway towards economic recovery.
• A resolution of the conflict in Ukraine – surely mediation has a role to play.
• Clarification from the Irish High Court on whether adjudicators’ decisions are subject to judicial review. Whatever the answer, I hope it doesn’t stymie the increased use of adjudication in Ireland.

… and finally, as it appears that we’ve got our “old” West Ham again, avoiding relegation. Last year we were riding high in the Premiership (fifth) when I wrote my new year blog. This time around we are in the bottom three, on the cusp of playing Championship football in our not so new (or shiny) stadium, rather than playing Barcelona at the Nou Camp (a man can dream!). I’m forever blowing bubbles…