Entering into Autumn 2023 and leaving behind the English summer often provides a time for reflection.
As usual, though, my mix of time zones and work patterns means that my English autumn is an African spring. With the warming of the Cape, I head to South Africa and Zimbabwe during the next three months.
The Summer Solstice of England was foregone for a Romanian June and with it a sternly contested arbitration hearing. The hearing was only broken by occasional evening communications with the Croatian under-21 football team staying in my hotel. Joyously the 11-strong England team went on to win [Edit – is this what they call a phyrric victory?!]. Yet I don’t know about my arbitration, and won’t for some time.
A Mini-Series of Adjudication
Travelling home, I received a request to assist in some adjudications. Together they all ran to a mini-series of disputes.
Without too much detail, the first was a residential property which was defended due to it being referred without the correct parties. It then suffered from reference to the wrong section of the Construction Act. Two down.
In tandem with this, a series of two adjudications between contractor and subcontractor. These successfully concluded in a negotiated final account because both parties saw sense and avoided the costs of consultants and legal teams. Four down.
I then started another one! In this case, the business owner wrote to say he now understood the problem with non-payment through my written referral narrative. As a result, he was wholly confident in entering into a successful negotiation from a position of strength. He did. Five down.
In adjudication 6, a referral of a contra and payment of a variation followed. Then, in referrals 7 and 8 payment of applications and interest followed. In 9 and 10 payments of interim applications interest and adjudicator fees followed.
In what was the 11th adjudication of the English summer/African winter, we were met with every objection possible. Included were the usual suspects: jurisdiction; natural justice; adjudicator must resign. And so on… Eventually, a no-score draw of a decision followed. This perhaps suggested that the heavy-handed approach had unnerved the adjudicator.
Coaching for Success?
Adjudication remains a great tool in the English construction industry. Some lessons from the summer:
- The dire consequences of referring a matter to the wrong party. Then in the wrong forum, causing one opponent to suffer wasted costs, loss in time and the necessity to start a revised strategy.
- The use of adjudication often helps the parties by reminding them to talk and resolve issues without continued dispute and costs.
- The benefit of impartial advice and understanding of the causes of a dispute can help a claiming party understand issues blocking settlement. Overcoming them can open settlement discussions.
- In the face of commercial threats, the use of adjudication remains the best source of dispute resolution. Contractors who become entrenched in their words and actions are often incorrect in their ideas and opinions.
- Sometimes, clients will instruct legal teams to expend endless amounts of fees on disrupting an adjudication. It renders very little purpose in declaratory referrals other than to saddle a client with a hefty invoice at the end of the month.
In summary, one client faced an inflated monetary claim. Another client couldn’t get to talk to their client. Thankfully these clients have all enjoyed the summer and their businesses are in good shape.
At the start of the summer, one client was told they wouldn’t receive another penny. By the end of the summer, they had received over £600,000 from the same client thanks primarily to adjudication.
Onto the winter and summer season! And as always, should you need help with adjudication, arbitration or simply advice on commercial issues, please get in touch.