A couple of weeks ago I was part of the panel at the launch event for the updated adjudication guidance notes published by the Chartered Institute of Arbitrators (CIArb) and the Adjudication Society. The other panellists were Ciaran Fahy, Susan Francombe, Kim Franklin QC and Jeremy Glover. The event was moderated by Lewis Johnston.
In case you are unfamiliar with either the notes or the event, what follows are a few thoughts about both.
What are the guidance notes?
There are five guidance notes covering:
- The Scheme for Construction Contracts 1998.
- Construction contracts and construction operations.
- Natural justice.
- Adjudicator’s liens.
The first four notes date back to 2013, so it was probably time for them to have a refresh. However, the event only launched revised copies of these notes because the note on jurisdiction had already been revised (in 2016, as Jonathan covered at the time). It was also the first note in the suite to be published back in 2011, as Jonathan explained then too.
Freely available, concise and easy to read
To borrow from one of Jonathan’s post, the notes are freely available, concise and easy to read. Because of this, I’m not going to go through each one. They are also well written and did not require major changes. In fact, quite the opposite really, with just a few relatively minor changes necessary, along with the incorporation of more recent case law. As Susan put it, it has been “a tidy up rather than a rewrite”. She may have been referring specifically to the note on the Scheme, but I think it applies across the board.
At the launch event, the notes were introduced by a panellist, who set out where amendments had been made and explained their rationale. I got construction contracts and construction operations. We are all familiar with the difficulties the section 105 exclusions have introduced and the note is a helpful reminder of those issues. It may be that the view on some of the exclusions (such as power plants) has changed but, unless the legislation is amended (as many have called for), we are stuck grappling with these issues. As was recently demonstrated in Engie Fabricom (UK) Ltd v MW High Tech Projects UK Ltd, not all parties opt in to having adjudication to resolve all the disputes that may arise during a project.
As I have already mentioned, Susan looked at the Scheme and Jeremy highlighted that the note on liens probably had the least changes of all the notes (possibly because it is so well established that an adjudicator does not have a lien over a decision).
The note that saw the most change was the one on natural justice, as Ciaran explained, with a new section on unrepresented parties, an enhanced section on employing third parties and assistants, and a postscript referring to Coulson J’s seven golden rules for adjudicators. I remember being at the event when those rules were set out. They are a useful overview of the factors that make a good adjudicator, especially as they come from the person who (literally) wrote the book on the subject (and they are in there too!).
Need for a diverse talent pool
After providing a summary of the notes, the panellists discussed some wider issues affecting adjudication, looking at trends and some of the likely challenges. As the CIARb website says, the theme that dominated the discussion was the need for adjudicator nominating bodies (ANBs) to:
“…draw from as diverse a talent pool as possible if adjudication is to retain the characteristics that make it an attractive form of dispute resolution.”
In other words (as Ciaran alluded to), even if experience and maturity are important, the current ANB panels are too grey and too male. There was an acknowledged need to make the panels more diverse and to introduce new blood. As Susan said, we need to make being an adjudicator an attractive profession and for diversity to be the norm.
The more difficult issue is how to do that. I have been talking about this for years, as anyone following this blog will know. I strongly believe that experienced adjudicators and ANBs have a huge role to play in this regard:
- ANB’s can help by requiring existing panel members to take pupils, making it a requirement for new applicants to have undertaken pupillage and stop giving appointments to the experienced adjudicators who have a ready supply of work from the market through private or joint party agreed appointments.
- The experienced, busy adjudicators can help by being more selective in the disputes they accept appointments to act in, decline to accept ANB appointments that are more suited to less experienced panel members and take on board pupils.
From a purely personal perspective, I could do with spreading the load and having more people available to take appointments (especially as we all anticipate a rise in disputes in the coming months).
The panel agreed that the new low value adjudication schemes may be one way to do this, although it was recognised that low value doesn’t always equate to straightforward.
Responding to COVID-19
Kim also made an interesting point about adjudication being the ultimate low tech dispute resolution process, with around 87% of all referrals decided on paper alone. In her view, this meant it was well placed to cope with the challenges that COVID-19 has presented us with, and the likely increase in claims as a result. I agree with that and I wrote about the challenges early in the pandemic. Since then, we’ve all adapted to home working and seem to have embraced technology, meaning where we are is less important than ever, and we can all get on with our day job.
Kim also mentioned the 20% increase in referrals after the 2008 recession. Whether we will see that sort of tsunami of cases remains to be seen, but with the courts supporting adjudication (think MillChris Developments Ltd v Waters) and supporting payment (how can we forgot Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd), we are likely to be busier than ever in the coming months. This is why expanding ANB panels is so important and (borrowing from Kim one last time), we should be like Noah and prepare for the flood – not wait until it consumes everyone!