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Taking on trust

On 1 May the Adjudication Procedures of the Housing Grants Construction & Regeneration Act (The Construction Act) came into effect. How do I know this?

Because I have been absolutely inundated with invitations to seminars, presentations and lectures on the subject by almost every firm of solicitors of consequence in the country.

More recently I have received documentation on the implications of the Act from two major professional indemnity (PI) insurance brokers, which between them probably cover the vast majority of consulting engineering practices.

Now I am just a simple person, so obviously I am easily confused by all this activity. I thought that when the Latham Report originally recommend adjudication as a procedure for resolving day to day disputes on construction contracts, it was with the objective of reducing the disastrous level of litigation which has infiltrated the construction industry over the last 20 years. Indeed we have already seen things improving with a move towards partnering and Peter Birse publicly apologising for his company's past misdemeanours with had led Birse, and let's admit it, many other companies, into serious confrontational situations with clients, professional consultants and subcontractors.

So why are all these public spirited firms of solicitors so keen to explain what the adjudication procedures of the Construction Act mean for the industry?

The answer came to me only recently when the PI insurers wrote to their clients giving guidance as to what consultants should do when even the smell of any adjudication procedure is sensed on any contract - whether the consultant be involved in the dispute or not.

Clearly the lawyers have managed to terrify the PI insurers, and in doing so would seem to be aiming to create for themselves a potentially lucrative market based on the undermining of the excellent Latham intentions.

Obviously adjudication will never work when one is dealing with the minority who can be classified as crooks or idiots; but when dealing with the vast majority, adjudication is a sensible procedure which will almost certainly be successful in the great majority of cases, unless of course we can be persuaded to turn it into further fertile ground for confrontation, aggravation, high blood pressures and grey hair - and of course the attendant high fee levels so well identified by Lord Woolf in his excellent report of two years ago on civil law procedures Access to justice - also a subject for an attempted demolition job by some lawyers.

May I make a simple suggestion. Why do PI insurers not start by trusting their customers, rather than their legal advisers. That would be a nice partnership wouldn't it?

Brian Clancy (F), Brian Clancy Partnership, Dunham Court, 2 Dunham Road, Altrincham, Cheshire, WA14 4NX

Learning opportunities

I was surprised, and indeed shocked, to read your report on the introduction of the Construction Act on the first news page of NCE 30 April.

To report on the introduction of statutory adjudication and payment procedures by giving advertising opportunities to distinguished lawyers must be comparable to reporting on Christmas by interviewing distinguished turkeys. Their views are predictable and add nothing to our knowledge of the main event.

For informed and useful opinions you would have been better advised to interview construction professionals with practical experience of disputes and knowledge of the development of the published adjudication procedures and amendments to the standard forms of contract. You might then have received the opinion that, while the Act is badly written and seriously flawed in many details, it does give the industry the opportunity to exchange the cost of lengthy arguments intended to establish the respective rights of employer, contractor, sub-contractor or consultant for the cheaper concept of a fast decision with an element of 'rough justice'.

The amendments to the contracts and their associated adjudication procedures have been written to convert the deficiencies of the Act into practical and fair working procedures.

The fact that the industry will suffer further self-inflicted problems can only be overcome by a greater awareness of the opportunities and benefits which are now available to both parties to every construction contract. This awareness can easily be achieved by training and debate on the potential problems.

Such training and debate is readily available through the training courses and conferences which are being organised by the professional institutions and private training organisations.

Brian W Totterdill (F), The Hoard, High Street, Chew Magna, Bristol BS18 8PW.

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