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The judge wasn鈥檛 impressed by a few bright ideas in this main contractor鈥檚 rules when adjudicating. John Graham Construction instructed subcontractor Pioneer Cladding to carry out the cladding and curtain walling at a site in South Shields. There was an ordinary dispute. The very experienced adjudicator John Riches decided Pioneer had been overpaid but was also underpaid. Graham was ordered to pay up 拢193,000 or so.

Now then, before we go any further, may I have a word in Graham鈥檚 ear? You are a well-known, long, long established company. Big in Northern Ireland; big now elsewhere in the UK; 1,400 employees. Your public relations, your image, may have gone skew-whiff. There is a real danger that your subcontract adjudication rules create a bad impression. Do yourself a favour - rewrite your rules; they don鈥檛 work anyway. More than that is the PR point. Most of your competitors have twigged that it鈥檚 not wise to tamper with adjudication provisions.

Graham鈥檚 subcontract adjudication rules begin well. They say any Construction Act adjudication is to be conducted via the Construction Industry Council (CIC) model rules. Then they slip in one or two 鈥渘otwithstandings鈥�. The first is that, notwithstanding the CIC rule that leaves the adjudicator to allocate his fee so that the losing party pays or so that there is some sort of share, the party that brings the adjudication shall cop it for the adjudicator鈥檚 fee, come what may. The judge saw through that, and by the way so does everybody, yes everybody, else: 鈥淚t鈥檚 a provision which could discourage a claiming party from commencing adjudication and is therefore unlawful.鈥� So that鈥檚 the end of that one.

Perhaps Graham could see what was coming to it anyway because, in all fairness, it coughed up half of the adjudicator鈥檚 bill before it tried to argue for what its first 鈥渘otwithstanding鈥� says.

Graham鈥檚 rules begin well. They say any Construction Act adjudication is to be conducted via the Cic model rules. Then they slip in one or two 鈥榥otwithstandings鈥� 鈥�

The second one said: 鈥淚n the event that the decision of the adjudicator is the making of a monetary award (adjudicator鈥檚 award) in favour of the subcontractor, the following provision shall apply: 鈥楪raham shall place on deposit the amount of the adjudicator鈥檚 award with the Northern Ireland Bank Ltd in the joint names of the solicitors acting for Graham and solicitors acting for the subcontractor within seven days from the receipt by Graham of the adjudicator鈥檚 decision.鈥欌��

Oh, come on - that collides full-on with the whole idea of the Construction Act. The judge said: 鈥淚t is in breach of both the policy behind the 1996 act and the act itself 鈥� It would deprive a claiming party of the money it had been awarded by the adjudicator and is a clause designed to discourage a party from exercising its right to take disputes to adjudication; it is unlawful. So that too is the end of that.

Look, as to the policy behind the act, it鈥檚 all about who has the benefit of the cash at this quick-fire provisional stage. It鈥檚 a 鈥減ay now, argue later鈥� concept.

The idea of putting that cash into a bank so that nobody gets it until sorted out in litigation or arbitration or the subby squeals for mercy is just a game of pressure. The judge reminded us a snappy adjudication, done now, here, today, is not a definitive end. That鈥檚 what the act is about - even if, in practice, we all go hell for leather to find out what the right answer is.

The story does not end there. Graham ran another argument. In a sense, it goes back to the thinking behind trying to get the money put into a stakeholder account. It鈥檚 the worry over whether, if they pay up on a quick-fireadjudication system, they will get that money back if they go to trial or arbitration and win.

Well, here in this judgment is proper process for getting the money order stayed. Pioneer is, after all, to be deprived of the cash or, rather, it is to be locked away until an arbitrator examines the whole dispute afresh and in depth.

The tests for a 鈥渟tay鈥� of an adjudicator鈥檚 order begins with putting the adjudication process into context 鈥� in short, parliament gave a quick, relatively inexpensive method of arriving at a temporary result in a construction dispute. With that firmly in mind, the court has an inherent discretion to weigh any probability that a party may not be able to repay at the end of a more substantive examination.

But it鈥檚 not enough to simply point to a party鈥檚 poor financial position to receive the cash. There will be no stay if that financial position is due wholly or in significant part to being held out of this cash. Nor will a stay be granted if the bargain was originally struck with a party who was in a similar financial position at the outset. Skint then, skint now; pay up. The stay was granted. That鈥檚 all we need to say.

Tony Bingham is a barrister and arbitrator at 3 Paper 黑洞社区s, Temple