Construction Adjudication - A peek into the future

CIArb’s London Branch hosted its second ever webinar on 10 June 2020 on the topical issue of adjudication. Responding to the challenges of lockdown, the Branch committee, under its new Chair, Ben Giaretta C.Arb FCIArb, elected to open attendance to all, not just branch members. From an impressive number of registrations, over 200 attended via Zoom on the day from around the globe. The attendance poll revealed a third of those attending were new to CIArb and the London Branch.

Emmanuel Odigie FCIArb, a chartered surveyor and adjudicator with dispute resolution practice, Fgerod & Fgerod, invited three speakers, Tricia Morrison MCIArb, a partner with the construction team at Hill Dickinson, Ivor Collett a barrister and TECBAR adjudicator and Kim Franklin QC C.Arb FCIArb, both with Crown Office Chambers.

Tricia Morrison gave a comprehensive review of the recent authorities in the wake of the settlement in Grove v S&T, before the Supreme Court could decide the future of ‘smash and grab’ adjudication. Recent cases, including M Davenport Builders v Greer and Broseley London v Prime Asset Management highlighted some uncertainties arising from the ‘smash and grab’ v ‘true valuation’ debate. Perhaps inevitably, in the current climate, thoughts turned to insolvency and the cases of Meadowside Building v 12-18 Hill Street, Astec v Balfour Beatty and the decision of the Supreme Court in Bresco v Lonsdale, expected this summer.

Ivor Collett gave the barrister’s perspective, particularly the role of amassing and harnessing the necessary material within the 28 day time limit. He also highlighted problems of tribunal bias and enforceability. The case of MillChris Developments v Waters was of particular interest. The TCC refused an injunction to restrain an adjudication on the basis that lockdown was no reason to stop it proceeding. Ivor also introduced ‘the new kid on the block’ the PNBA adjudication scheme for professional negligence disputes. Adjudication was found to be unsuitable for professional negligence claims, primarily because the time limits are unworkable for insurers, particularly where expert evidence was required. The new scheme is consensual with a more practical timetable of 56 days.

Kim Franklin QC C.Arb FCIArb looked into the future from the Adjudicator’s viewpoint. The Adjudication Society’s Report No. 18 showed that adjudication was growing in popularity before the pandemic, with an increase in referrals from 1700 to 1900. It is the ultimate low-tech dispute resolution procedure and offers both familiarity and flexibility to the hard-pressed, cash-strapped construction industry. Speaking on the Radio 4, ‘Today’ programme in April, Lord Neuberger, warning of an avalanche of COVID related claims, urged the use of ADR to protect the courts from being overwhelmed. Compared with the courts, which have been underfunded for over a decade, adjudication requires no infrastructure, no technology and no state resources. It clearly has a future.

Kim concluded with some tips on best practice in adjudication, including a sensible approach to timetable, defining the issues for decision and providing the supporting evidence in a paginated, indexed and chronological format. It its 2020 report on Global Construction Disputes, Arcadis identified poorly drafted, incomplete and unsubstantiated claims as the main cause of disputes. This may go some way to explaining why 30% of adjudications result in a £nil valuation.

Although webinar format precluded formal questions, the Chat function allowed for a lively exchange of views. The concluding poll showed that most of those attending would consider using adjudication before arbitration or litigation.

The speaker slides can be downloaded below:

Ivor Collett 
Kim Franklin QC C.Arb FCIArb 
Tricia Morrison MCIArb