68 legal Tony Bingham Like the umpires in last month’s ill-fated test match, adjudicators test the dispute against the rules and make a judgment – unfortunately some construction folk, and one or two lawyers, haven’t quite grasped that they can’t tamper with the ball either … Certifiable adjudicators ricket umpire Darrell Hair and his deserved to win. And, if there were gaps in fellow umpire Billy Doctrove gave the his case, a hole or two in his evidence, well Cpress and cricket world a real good now, the adjudicator could have invited him story for the dog days of summer. Protesters to fill the gaps, plug the holes. Instead, the in Pakistan burned effigies of Hair after he adjudicator simply announced there wasn’t made two decisions that led to the test match enough evidence to prove a point. being awarded to England. I heard myself Hair and Doctrove also applied the rules muttering “Who’d be an umpire?” when the Pakistan team refused to come out And then the phone rang. The voice said to play. The bails came off the stumps when that he was ready to shoot the umpire. No, the rule was broken. Game over. Match no, not Hair or Doctrove, this was a awarded against the side having the tantrum. construction dispute umpire … an Retired cricket umpire Dickie Bird would adjudicator. He told me the story. Within a not have adjudicated. He said, “I’d have done few minutes it was plain to me at least, that everything possible to keep the match going.” the adjudicator had done his job perfectly “After the match, you all get around the table and precisely … he had applied the and thrash it out.” Mr Bird wasn’t all too rules of the game, the rules in the impressed with using the letter of the law. contract, the rules for deciding That was when I realised that my caller disputes. The adjudicator had decided didn’t want his adjudicator to actually my caller had won nothing. My caller adjudicate. He had spent all his construction was defiant: “It is a staggering years mixing it with architects, engineers and example of an overbearing adjudicator quantity surveyors, who play the game like applying the letter of the law.” Dickie Bird. Well, errr, hmmm, yes. Look, when an architect issues a certificate The truth is that my caller didn’t indicating the amount due, they are not actually want the adjudicator to adjudicating a dispute. Unlike an arbitrator adjudicate. Instead he wanted the or an adjudicator or a judge, there is no fellow to do everything and anything to judicial duty. The architect, engineer or QS is help him win. He had convinced carrying out an investigation; then they make himself that he, or rather his client, a decision, but not a judicial decision in the Brian Kilgallon Project bank accounts and project insurances were pioneered six years ago, but few have adopted them. Will the 2012 Olympics prove the catalyst for permanent change? Collaboration is the real Olympic prize he government published lately Lord Rogers have these softer issues have a very six years ago. Despite this, few the 2012 Construction championed collaboration. important role to play in have adopted them. But adopt TCommitments in July. The Olympics offers the sort of successful collaborative working. them they must. Collaboration is a key driver of catalyst the industry needs to But two more fundamental How can a contractor’s supply the commitments, which make a really embrace it and make it issues underpin its success – fair chain ever truly collaborate if it series of best practice policies work. Indeed Tessa Jowell, the payments down the supply chain has a festering grievance that it obligatory on all Olympics Olympics minister, has pledged and abolition of the blame game isn’t being paid in a timely contracts, including project bank to make the 2012 commitments when things go wrong. manner despite offering a good accounts and project insurances. the norm for all public sector Project bank accounts (PBAs) service? The public sector has been projects. and project insurances were PBAs are open, transparent and leading the drive for best Collaboration is all about pioneered as tools to establish auditable and provide suppliers practice for some time. relationships, building teams, true collaboration on Defence with the surety of timely Successive initiatives and reports establishing an environment of Estates’ North site prime payment. Their trust status also from Latham, Egan and most trust, openness and honesty. All contract at Andover, Hampshire, safeguards the supply chain’s BUILDING MAGAZINE 15.09.2006 legal 69 way of determining a dispute. They are It’s wrong to adjudicate a norm, or call it a comfort zone. But it’s wrong deciding what to do in all the circumstances. to adjudicate a dispute as if it’s a certificate. Dickie Bird had his eye on “all the dispute as if it is deciding Make no mistake about it: a dispute decider circumstances”; they included the fact that is carrying out a judicial function. 23,000 spectators plus millions on television a certificate. Make no Does all that mean that if an adjudicator, and radio were deprived of a complete test arbitrator or judge becomes “investigative” he match. An architect may well “adjust” his bones about it: a dispute goes wrong? Does all that mean that Hair and certificate to suit “all the circumstances”; and decider is carrying out a Doctrove went wrong? he can do so because he is not an arbitrator The answer is that no wrong is done on or an adjudicator or a judge. judicial function either count, although there are lots of “ifs”. The significant distinction is in the peculiar If an adjudicator acts like a detective they nature of duties of a judicial character. In will be criticised – if their “inquiry” is unfair. this country judicial duties do not involve the arbitrator, adjudicator or judge to form a It is dangerous to be “an inquirer” given the investigation. That remark was made in a judgment and reach a decision on the timescale of construction adjudication. The famous case in the House of Lords, 30 years materials before them. But it doesn’t surprise court will strike down unfairness. As for ago, called Sutcliffe v Thackrak. me one jot if an adjudicator who was cricket and umpires bowling The parties submit the dispute for a previously trained and then practised as an googlies, well now, it’s only a decision. Each party submits his evidence architect, engineer or QS attempts to carry game after all. Isn’t it? and contentions, and it is then the function of out an arbitration or adjudication in the same Tony Bingham is a barrister and mode as a certifier. Call it habit, call it a arbitrator Any team can from their supply chain’s subrogation rights. In other contractor on the project. As a money, albeit less in these words, they do not let insurers result it did not have the collaborate while post-Construction Act days. drill down to involve the policies baggage, established practices or But margins need not be of individual supply chain vested interest of a traditional things are going threatened. Any adjustment in members in the event of a claim. main contractor so could create the contractor’s margin to Consequently there is no need collaboration at all levels in the well. The real test is compensate for PBA should be to apportion blame to make a team. It scored the highest marks what happens when offset by reduced supply chain claim. All that has to be ever awarded to a Constructing prices as the need to price the established is that a qualifying Excellence case study for things go wrong risk of late payment disappears. event has occurred. The team’s innovation and best practice. Project insurances are equally focus remains on the project The sheer scale of the Olympics fundamental as they tackle the rather than protecting individual could make them the vehicle to money should the contractor or blame culture. Any team can positions. champion change. Their biggest client become insolvent. collaborate successfully while The adoption of project legacy could be to force the They have been heralded by the things are going well. But team insurances has had marginally construction industry to alter its National Audit Office and Office working soon grinds to a halt greater success than PBAs, the practices and to usher in a of Government Commerce as a when problems arise and biggest success story being their golden era of collaboration. great innovation in the drive for everyone has to dust off their all use on T5 at Heathrow. Brian Kilgallon is a partner at fair payments. risks or PI insurance policies to A possible reason for the Bucknall Austin and is project Cynics say main contractors fight a potential claim. generally slow take-up by the director of Andover North dislike them as they will see Project insurance covers the industry since Andover is that them as a further erosion of their whole supply chain and if Bucknall Austin was a consultant You can email him at margins. They can still benefit structured correctly has no unusually acting as prime [email protected] BUILDING MAGAZINE 15.09.2006.