Construction Adjudication: Taming of the Process

The adjudication process came stampeding into the construction industry in the late nineties, driven by reports such as the Latham Report 1994 and supported by legislation such as the Housing Grants, Construction and Regeneration Act 1996. Many detractors of the process decried its wild disposition and predicted that its ‘rough and ready’ nature would deliver unsupportable decisions, incapable of withstanding the rigors of the UK legal system.

Fast  forward a decade and the success of construction adjudication had surprised supporters and critics alike. A key reason for the success of the process was the strong support of the Courts. Several early cases and a litany of subsequent cases established clear precedent by which the process was to be operated, managed and implemented. The Courts upheld adjudication decisions, supported adjudicators and praised the process.

Adjudication has matured into the mainstay of dispute resolution for the construction industry, not only in the United Kingdom, but across many jurisdictions. The process is written into all commonly used standard forms of construction contract and its application has become a contractual imperative.

Perhaps the most commonly noted negative attribute of Adjudication is that it fails to differentiate between one dispute and the next. A claim of £ 50,000 referred to adjudication is subject to the same restrictive timescales and process as a claim for £ 50,000,000. Moreover, the very nature of the process and the provisions of the legislative support has given rise to questionable practices such as ’smash and grab’ or ‘ambush’ adjudications.

Although adjudication was always intended as a process ‘for the construction industry, by the construction industry’, it is doubtful that its creators ever truly intended the process to remain untouched by the legal fraternity. Legal input has had a positive influence on the practice, and has assisted in shaping the implementation of the process. There are however those who believe that the legal industry has overstayed, or rather, overextended its welcome with regards to adjudication.

Despite the rules of adjudication not making room for different ‘scales’ of claims, distinct formats of adjudication have developed. These formats may be categorized by two primary identifiers, influenced by the claim drafters. The construction claims market has developed at pace alongside  the adjudication process. The preparation of claims intended for submission under the conditions of construction contracts has developed into a defined practice, which produces claim documents that have a distinct industry specific look and feel. It is often the case that claims submitted in adjudication are prepared by construction claims specialists/consultants and thus mimic the form and format of construction claims. Claims may also be prepared and submitted by the parties. Such claim documents may have tables, graphs, photographs, and others such presentations embedded in the document, as well as references to attached evidentiary items.

Legal professionals develop a different drafting skill set, most commonly following the well-developed High Court format. This ‘pleadings’ style drafting of claims has been used in the adjudication process when legal professionals or alternate law services providers have been engaged to prepare submissions. As such, adjudication claim documents may have very different content and appearances, depending on the profession and/or background of the drafter.  

The question arises as to whether or not this presents a challenge to the industry and to the adjudication process. There is no definitive answer to this, however, for those intending to use the process, it is recommended that a ‘merits based’ assessment of any claim be undertaken by qualified 'construction industry' professionals to determine the required input into the submissions. Construction professionals are often best placed and qualified to prepare adjudication claims. This is supported by the fact that most adjudicators are construction professionals, dominantly Quantity Surveyors or Engineers. These professionals will have a greater understanding and recognition of submissions prepared by fellow construction professionals. Adjudicators will be familiar with and will understand the industry approach to disputes. There is the potential that adjudicators may miscomprehend matters presented in a technical legal format with which they are less familiar.

Therefore, allowing construction professionals to assist with a merits-based pre-assessment of adjudication claims, can ensure that the right decision on representation is made, taking account of the facts and circumstances specific to a claim.

It is important for the construction industry that adjudication does not become an overtly judicial process, led by legal practitioners rather than by industry professionals. Adjudication is, and must remain, a construction process.