REUTERS | Darren Staples

My 2018 wish list

I always like looking forward to the forthcoming year, to things I’d like to see happen, and also reflecting on what I’ve wished for in the past, and seeing whether those things have been achieved. It’s a bit like being Ebenezer Scrooge in Charles Dickens’ A Christmas Carol, when he is visited by the ghost of Christmas past, the ghost of Christmas present and the ghost of Christmas yet to come (but without being a “bitter, cold-hearted miser”).

Christmas past

Jonathan looked forward last year, so I thought I’d reflect on a couple of my old new year posts but, before I do, I must mention the first item on his 2017 list.

Jonathan wanted a judgment dealing with the conflict between section 108A of the Construction Act 1996 and section 5A(2A) of the Late Payment of Commercial Debts (Interest) Act 1998. I think he got his wish when O’Farrell J dealt with this point in Enviroflow Management Ltd v Redhill Works (Nottingham), finding that an adjudicator did not have jurisdiction to award a party its “debt recovery costs”, claimed under the Late Payment Act 1998, which I looked at at the time. That was one nil to the Construction Act I think.

Other things I’ve wished for in the past include:

  • The enforcement of an adjudicator’s decision in Ireland. Since Ireland has a new Construction Act, this is already a reality for parties contracting there.
  • Continued regeneration and/or investment around the new Crossrail stations in London. The Elizabeth line opens later this year (at least parts of it), so we are sure to see this as a reality in 2018. Also, you only have to look at the regeneration around the Olympic Park and Kings Cross to see what is possible.
  • Continued integration and support of adjudication within the overall dispute resolution framework for construction industry disputes. We certainly see this from the TCC judges, although I’m not sure if the increased use of CPR 8 declaratory relief applications to deal with jurisdictional (and other) challenges has been such a good thing.
  • Clarification of the payment provisions in the Construction Act 1996. Again, there has been a proliferation of cases over the last couple of years focusing on the meaning of those terms. However, as Coulson J said just the other day:

    “… there is a concern that the pendulum has swung too far the other way. These rigorous contractual terms have been extended to cover, not only interim payments (which was the primary aim of the 1996 Act), but the permanent rights and obligations that arise out of dispute resolution procedures and the settlement of the final account.”

  • Increased use of dispute boards within the UK. Despite NEC4 and the new FIDIC contracts including amended dispute resolution provisions, I feel this is still someway off (not least because of the cost).
  • Increased opportunities for newly qualified adjudicators to get appointments and mentoring or pupillage schemes for new adjudicators to address the fact that the process is now far more complex than was originally envisaged (plus adequate pension arrangements to enable the mad, bad and battle weary adjudicators to retire gracefully). We are currently addressing the academic side of training but its hands-on experience that is the issue. The industry would definitely benefit from a pupillage/mentoring scheme, very much like we used to have with arbitration when there was a problem of new arbitrators getting experience. I realise that parties would have to agree to this, but I would hope that they’d see the benefit of it.
  • I’ve also suggested the need for an effective and independent system of monitoring the performance of adjudicators and nominating bodies (ANBs) and wondered whether we should follow Ireland’s lead, where there is only one ANB.

Christmas present

I don’t think you can start 2018 without referring to Brexit and Donald Trump, but I’m not sure how best to reference them without being political. Perhaps just mentioning them is enough. After all, they are like the proverbial elephant in the room (although some people do like talking about them!).

Christmas yet to come

Issues that spring to mind for 2018 and beyond include:

  • Access to affordable housing (through shared ownerships and the like).
  • More apprenticeships, and not just in the construction industry, and other genuine alternatives to full-time university study (such as work placements).
  • Project insurance.
  • Stopping retention abuse (for example, trust accounts like the landlord deposit scheme), which may actually happen given we have a consultation on the subject.
  • The positive actions that ought to come out of the various Grenfell Tower fire inquires.
  • The realisation of productivity gains and increased automation to make the UK’s construction industry competitive and perhaps also to address the labour skills shortage.
  • An adjudicator pupillage/mentoring scheme (as mentioned above).

And finally (and not for the first time or, probably, the last time), for West Ham to avoid the drop. I don’t want to jinx this, but they are playing well under David Moyes and have been unlucky a couple of times not to win (although perhaps I would say that).

Happy new year.

MCMS Ltd Matt Molloy

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