黑洞社区

Well, well. A pat on the back for the DTI. The proposals for changes to 鈥淐onstruction Act adjudication and payment rules鈥� are ever so well done. Mind you, it is a surprise that the changes will require the full apparatus of parliament 鈥� the intention being to change the primary act, instead of indulging in a little ministerial tinkering. That鈥檚 a serious point, not a minor whinge. If the act is to be changed and parliamentary time is to be made for it, there are important other matters that we ask for. Hitherto, most of us have not been giving thought to primary act changes. Let me come back to the implications.

But first this legal page has been, quietly and politely, shouting its bloomin鈥� head off about the 鈥渃ontracts in writing鈥� rule. And lo, the first change is that all those rules are to go, vamoose. It will no longer be the case that 鈥渁djudication and the payment rules鈥� only apply to 鈥渃ontracts in writing鈥�.

Hooray. An awful lot of wasted money, wasted adjudicator and court time, has been spent fathoming quarrels about contracts. Once the act is changed it will apply to not only contracts in writing, but also that that are entirely oral, partly oral, and partly written, and those varied by oral agreement.

Wait, wait: the DTI in these latest proposals said it would apply to 鈥渃ontracts鈥� of all hue. Please, please also include as 鈥渋n scope鈥� all 鈥渁greements鈥� irrespective of whether they are 鈥渃ontracts鈥�. Take a look at Bennett vs Inviron [January 2007]. It was an 鈥渁greement in writing鈥� but not a 鈥渃ontract in writing鈥�. It was, said the judge, an 鈥渆quitable agreement鈥� in writing. So, come on DTI, look at that. Go to the lengths of dealing with any old 鈥渁greement鈥� to do building construction works. A 鈥渃onstruction contract鈥� shall mean any 鈥渁greement鈥�, whether a contract or not.

Mind you, this change will not quite make the garden rosy. There will be a few quarrels about oral agreements. Do rehearse all that before you begin adjudication. If you are at odds about the existence of oral terms, that is another quarrel for a separate adjudication. And all you non-lawyer adjudicators mug up on law of contract and equitable agreements.

And while parliament is spending a few minutes deleting the 鈥渃ontracts in writing鈥� disaster would they add a few words in the primary act about the right to refer a dispute 鈥渁rising under the contract鈥�? Add 鈥渙r in connection with the agreement/contract鈥�? Why? Because on several occasions quarrels crop up regarding collateral agreements.

An awful lot of wasted money, adjudicator and court time has been spent fathoming quarrels about contracts

And, while parliament is spending a few minutes doing that, would it take a look at something that we have long allowed to , architects and surveyors in the role of arbitrators? Please look at the Arbitration Act 1996 section 30 and let the adjudicator rule on their own jurisdiction. Responding parties taking jurisdiction points, with an eye to tactics after the adjudication, spend lunatic amounts of money. It will stop if adjudicators are empowered to decide jurisdiction.

And while parliament is spending those few minutes would it take a look at another 鈥渟omething鈥�. Bring a rule into the primary act that anyone who proceeds with adjudication without raising timely objections to 鈥渢he right to adjudicate鈥�

loses the right to object. The same goes for anyone failing to object that the adjudication process is being improperly conducted.

There is more. Adopt section 56 of the Arbitration Act. It says, 鈥渢he arbitrator may refuse to deliver their award to the parties except on full payment of the fees and expenses鈥�. Why? Because there is a whole heap of losers in adjudication who enjoy not paying the adjudicator鈥檚 fees? So public money is spent suing. Easy, isn鈥檛 it?

And there is more. We boobed in 1996. The act forgot to deal with enforcement. Here is the crucial cost-saving line: 鈥淎n award made by the adjudicator pursuant to an adjudication agreement may, by leave of the court, be enforced in the same manner as a judgment, or order of the court, to the same effect.鈥�

That wording was on a bit of paper that slipped behind a radiator in the Palace of Westminster. But we found it! Come on parliament, save public money. Make the award an enforceable instrument. Don鈥檛 boob again.