Capper's way

Phillip Capper has succeeded John Uff to the Nash Chair for Construction Law and Management at King's College, London. To mark the occasion he gave a lecture. It was a very interesting lecture – you may recall I previewed it on 11 June. It was called The Construction Act: Are We – or the Judges – Taking Wrong Turns?

A lot of people came to listen.

If we and the judges had listened more carefully to what the act says there would have been fewer wrong decisions in the High Court, fewer wrong decisions by adjudicators and less wrong preparation, practice and procedure by parties' representatives. That was Professor Capper's argument and he explained it by way of his latest girlfriend. She's called Iris, and she navigates when he drives. He still goes wrong, but that's because he doesn't always listen to what she says and do as he is told. If only the judges would do as they are told they would stop making wrong turns. If only adjudicators would do as they are told they would stop making wrong turns. If only the parties and their representatives would do as they are told, they would stop making wrong turns. We, and the judges, need our own Iris.

Capper reminded me of my favourite lady friend: my Auntie Nell. She would say to me:

"Do as you are told". She would have said that to the Court of Appeal when it dabbled with adjudication. It makes wrong turns; it did so in two recent cases RJT Consulting Engineers Ltd vs DM Engineering and again in Tally Weijl vs Pegram Shopfitters. Worse still is to hear a party's representatives go wrong again on what is said to have been said by the Court of Appeal and worse still to hear adjudicators accept the wrong argument about what these cases say. By now Iris is saying, "Please make a U-turn".

Mind you, we can get lucky with wrong turns. When Sir Michael Latham made his recommendations 10 years ago he told parliament to legislate for this dispute-resolving device called adjudication, which was to apply during the contract period only. Parliament didn't listen. You can adjudicate, said parliament "at any time". We missed the turn. Good job, too.

And when judges in two cases expressed concern about adjudicating final accounts, Capper says two things: first, they are wrong; second, it is wrong to regard these judicial remarks as having anything more than by-the-way comments. Capper was ever so plain. Judges have said, "some disputes cannot be adjudicated" and Capper says: "I do not accept that".

Professor Phillip Capper reminded me of my favourite lady friend: my Auntie Nell. She would say to me: ‘Do as you are told’

That doesn't mean big wrong turns are not made in complex final accounts or professional services disputes. The representatives, when planning the journey to adjudication and in the adjudication itself are taking twrong turns. Look, the whole idea of adjudication is to bring a dispute to this independent impartial outsider. Did you listen? Iris said: "Bring a dispute." Capper explained that it was not right for the parties and judges baldly to apply a case called Halki Shipping Corporation vs Sopex Oils Ltd to determine whether a dispute had arisen in adjudication (type "Halki" into the Building website archive search engine for details).

The better question was to find out "what is the true range of the dispute" and to bring all that lot to adjudication.

For adjudication to work, there must be pre-adjudication exchanges. The key words from Iris are "for adjudication to work". Capper is disappointed with the ICE and NEC folk since they are about to announce the abandonment of the pre-adjudication protocol called "notice of dissatisfaction". Dropping it is a wrong turn says Capper. It was superb device aimed at making the dispute crystal clear. This pre-adjudication protocol crystallised the dispute. Then all that, and only that, came for a 28-day adjudication.