Practical Law

I can’t believe it’s that time of year again. It doesn’t seem like five minutes since I was writing a post looking forward to 2021.

Where did 2021 go or, for that matter, 2020 and countless other years before then? As I noted back in 2020, this is the third decade in which I’ve blogged for Practical Law Construction. It is also my 11th looking forward piece (Jonathan helped out in 2019 and 2017).

As regular readers may note, there has been a consistency in what I’ve wished for over the years. However, some may feel reading this is a bit like watching a scene from Groundhog Day… but I have let go of some things (adjudication enforcement in Ireland for example) and I’ve also got a few new items. 

Looking forward to 2022

Here goes for 2022 and beyond:

• Amendments to the CIC’s Low Value Disputes Model Adjudication Procedure (LVD MAP) to remove obstacles for its adoption and to make it more accessible. For example, removing the requirements for both parties to consent to using the procedure.
• Increased collaboration between the UK’s adjudicator nominating bodies (ANBs) regarding entry and CPD requirements for panel members. Is it time to adopt a practising certificate regime for adjudicators?
• Tied in with the collaboration point is introducing a system of accreditation/ qualification for adjudicators that includes a common standard of post primary qualification experience, assessment of competence and pupillage prior to accreditation.
• Following on from that, I’d also like to see increased diversity on ANB panels. It is something that Theresa Mohammed discussed a few years ago, when she concluded her piece with the following:

“The driver for this is not just because it is the right thing to do or because people from diverse backgrounds ‘deserve it’, but because it actually reinforces our faith in the justice system. Diversity also encourages ideas and increases the chances of a more thorough understanding of disputes. As such, it is important to foster different ways of decision making that can only be improved by a more varied demographic of those charged with resolving disputes.”

• Publishing adjudicators’ decisions. The objective is to increase quality and the predictability of outcome. It will also expose poor behaviour, whether that is of the parties, their experts or the adjudicator. The hope is that by having increased transparency, everyone will become more accountable. At the moment, we only get a glimpse of this when judgments set out chronologies of events or extracts from adjudicators’ decisions, and that invariably paints an unbalanced picture.
• The Court of Appeal to provide clarity regarding the question of whether you can start a true value adjudication when you haven’t satisfied a smash and grab payment obligation. We might have thought that the matter was settled after Sir Rupert’s judgment in S&T v Grove, but things are not quite as simple as all that.
• An uptake of the use of dispute adjudication boards (DAB’s) in the UK on suitable projects.
• The increased use of standing dispute avoidance/adjudication boards (DAAB’s) on international projects funded by multilateral development banks.
• A return to normality following COVID-19. It may have seemed like this was happening and then Omicron came along…

And finally, I can’t start the year without mentioning the Hammers as they are currently sitting fifth in the Premiership. What I’d really like to see is for them to play Barcelona in the Europa League (imagine singing I’m forever blowing bubbles at the Nou Camp) and to qualify for Europe again next season. Given I’ve only wished for them to stay up previously, I hope this isn’t too much of an ask!