It seems a long time since I wrote about the suggested amendments to the Scheme for Construction Contracts 1998 in England. It probably feels a long time because it was 15 months ago.
Over the last week or so the English, Welsh and Scottish governments have all published their amendments to the Scheme and the Scottish version of the Scheme. They are gearing up to the amendments coming into force this autumn, when the amendments to the Construction Act 1996 come into force.
We have been waiting a long time for this, but I wonder if it has been worth the wait. Before I comment on a couple of the changes, there is one thing I would like to say.
For the life of me, I can’t understand why we have to have two separate “coming into force” dates or three sets of the Scheme going forward. Why did England and Wales choose 1 October 2011 and Scotland elect to have a coming into force date one month later, on 1 November 2011? Equally, why three sets of amendments instead of just one set, subject to the changes necessary to deal with the differences between English/Welsh law and Scottish law. It is bound to lead to confusion and mistakes and, in the long term, most likely to a few unenforceable adjudicators’ decisions.
Back to the English Scheme amendments
Last year I commented that:
- It made sense for an adjudicator to have an express power to apportion his fees and expenses between the parties. At the time I noted that this already happens in practice, but I’m glad to see this carried through into the revised Scheme. Something similar, but slightly differently worded, applies in Scotland.
- It was a bad idea to change the period for complying with the adjudicator’s decision from “immediately on delivery”. I’m pleased to see the original wording remains in the revised Scheme.
- I was pleased to see a slip rule, but was unsure about the period for making corrections. I see this has been set at five days. I note my corrected decision has to be delivered to the parties as soon as possible. I hope this works in practice. At least it will provide certainty to the parties when it comes to considering payment or enforcement of the decision. Practitioners north of the border will also welcome the slip rule, since they have not previously had the option under Scottish law to amend their decisions.
- I wasn’t sure that the supplementary proposals were necessary to “remove any ongoing uncertainty or lack of clarity”. However, I was in favour of allowing the adjudicator to consider and deal with more than one dispute under the contract, or related disputes; to have greater powers to award interest; and that there would be no practical problems If the scope of the issues that an adjudicator may consider was broadened to include “final and conclusive” certificates. It is disappointing to see that none of these changes have been carried through to the revised Scheme.
A couple of things actually:
- I was quite surprised to see the new provision requiring an adjudicator to advise the parties of the date he receives the referral notice. I can see that the date for reaching a decision has also changed and is now calculated from this date, but isn’t that what happened in practice anyway? Is this change really necessary? And why hasn’t it been carried through to the Scottish version of the Scheme?
- I no longer have any peremptory powers but as I don’t think I’ve ever used this provision of the Scheme, I don’t suppose I’ll miss it. Similarly, I doubt the parties and their representatives will notice the passing of the section 42 Arbitration Act 1996 references. (Neither of these changes apply in Scotland.)
Wales is the same
As far as I can tell, there are no substantive differences in the amendments to the adjudication provisions in the Welsh version of the Scheme. At least that will make things easy for those who work and adjudicate in the west country.
Not much has changed then
I think you can describe the amendments as a “light touch”. It remains to be seen how practitioners deal with the changes and the challenges ahead, especially with the loss of the “in writing” rule. I predict plenty of blog material in the months ahead!