9.4 Nevertheless disputes may arise, despite everyone's best efforts to avoid them. A contract form with a built in adjudication process provides a clear route79. If a dispute cannot be resolved first by the parties themselves in good faith, it is referred to the adjudicator for decision. Such a system must become the key to settling disputes in the construction industry. Separate adjudication is not currently provided for within JCT 80. The architect has the specific role of contract administrator there and is under a professional duty to act impartially as between employer and contractor. This was considered at length by a working party which reported to the Joint Contracts Tribunal in 1993. It made proposals for clauses in the contract providing for mediation and/or adjudication. It spelt out how those clauses should work, and what form of disputes they should include. Other than lack of agreement within the JCT, there has been nothing to prevent the introduction of such procedures within JCT 80 already,
9.5 If the NEC becomes normal construction contract documentation, its procedures for adjudication will be followed, though they may require some amendments. But adjudication should be incorporated forthwith within the JCT family as a whole. (Regarding the JCT Minor Works Form, under which work tends to be fairly quickly carried out, the Tribunal may prefer to incorporate a similar conciliation procedure to that in the ICE Minor Works Form, though there is no inherent reason why adjudication should not be used for any size of contract.) There should be no restriction on the issues to be placed before the adjudicator for decision, and no specified "cooling off period" before the adjudicator can be called in. The adjudicator should be named in the contract before work starts but called in when necessary' The adjudicator must be neutral. If agreement cannot be reached by the parties themselves on a name, or names*', an appointment should be made by the Presidents of one of the appropriate professional bodies. Either party to a dispute should have the right to ask for adjudication. As well as dealing with disputes between clients and main contractors, the contract documents must specify that the adjudicator must have equal scope to determine disputes between contractors and subcontractors, and between subcontractors and sub subcontractors. Jurisdiction on subcontract issues should not be limited to disputes over set off. It should encompass any matter which can also be within the scope of resolution under the main contract. (In. many cases, disputes between clients and main contractors also involve subcontractors.) The adjudicator's fee should initially be the responsibility of the party calling in the adjudicator, but the adjudicator should subsequently apportion it as appropriate. Both main contractors and subcontractors have pressed hard for such a system to be standard procedure for dispute resolution. They should now seek to make it effective, in a spirit of teamwork.
9.6 It is crucial that adjudication decisions should be implemented at once. Mr Roger Knowles, Chairman of James R Knowles, Construction Contracts Consultants, writes:- "A well drafted disputes procedure involving adjudicators and arbitrators operating in an unrestricted manner will help disputes to be resolved quickly and inexpensively. For disputes settled by these methods, appeals and reference to the High Court should not be permitted under any circumstances, as it is the constant spectre of appeal which conditions the manner in which many arbitrations are conducted and which has emasculated the whole process". (Paper by Mr Knowles, April 1994.)
9.7 I have considered this proposal. It has also been made by others, who have drawn specific attention to the role of the expert under IChemE conditions. It is correct that the authority of the adjudicator/expert must be upheld, and that the decisions should be implemented at once. Such published experience as exists of adjudication - and it does not seem very extensive at main contract level, because the possibility of the system being used appears to induce the parties to reach their own settlement without recourse to it - suggests that it is successful in reducing disputes without further appeal or litigationE2. But it would be difficult to deny a party which feels totally aggrieved by an adjudicator's decision any opportunity to appeal either to the courts or arbitration. I doubt whether such a restriction would be enforceable. The SEACC system, which generally defers access to the courts until after acceptance, allows such an earlier reference to the courts in certain specified and limited circumstances. However:
1. The adjudication result must be implemented at once, even if it is subsequently overturned by the courts or an arbitrator after practical completion. If the award of the adjudicator involves payment, it must be made at once. Placing the money in the hands of an impartial stakeholder should only be permitted with the specific agreement of all the parties in the dispute, or if the adjudicator (exceptionally) so directs.
2. The courts (unless there is some exceptional and immediate issue of law which must be brought in front of a Judge/Official Referee at once) should only be approached as a last resort and after practical completion of the contract.
____________________________________________________________
79 The SEACC system contains a particularly good model for adjudication. The Interim Report set out in detail those other contracts which have adjudication or conciliation. There is also some provision within subcontract forms.
80 Some evidence suggested that for small and medium sized contracts there is no need to name an adjudicator in advance, but the contract document must provide for a method of appointing one if the need arises. (This suggestion is made in the Building Structures Group's final report to the Review.) On balance, I believe it would be better if the adjudicator was named even for the smallest contract, but, if not, the provisions must allow for a nominee to be appointed immediately on request. It would be damaging if the appointment of the adjudicator wasfrustrated by delay or disagreement by one of the parties to the dispute.
81 Medium or large sizedprojects may require more than one namefor different areas of possible dispute. Alternatively, a multi-disciplinary firm or firms could be named.
82 See for example the article by Mr Michael Morris in the February edition of the Journal of the lnstitute of Arbitrators about Adjudication Procedures on the Dartford River Crossing, and "Adjudicators, Experts and Keeping Out of Court" by Mr Mark C. McGraw of Lovell, White, Durrant which appeared in Construction Law Journal, 1992.