Now even friendlier

On 1 October the long-awaited version 2.0 of the TeCSA Adjudication Rules was published. TeCSA stands for the Technology and Construction Solicitors’ Association, which represents the interests and views of solicitors that specialise in construction law. The launch of this new version of the rules is a useful reminder that TeCSA played an important lobbying role during the passage of the Construction Act and the subsidiary Scheme for Construction Contracts through parliament. Indeed, it was the first organisation to publish a set of rules complying with the Construction Act.

These days, TeCSA’s activities in the adjudication context are of a more practical nature. First, it involves regular updating of the rules to take account of developments and feedback from users. TeCSA also trains and accredits adjudicators, many of whom are neither members of the organisation nor solicitors, and its own list of adjudicators now includes some 120 individuals from a broad range of disciplines.

TeCSA is in fifth place out of all the adjudicator nominating bodies in terms of the number of appointments it has made. So why has TeCSA’s Adjudication Rules proved such a popular choice over the years? The reasons are two-fold. First, TeCSA’s rules are fairly radical about trying to ensure that the dispute is resolved, notwithstanding the short time-limits. Second, its rules do more than most to ensure the enforceability of adjudication decisions in practice. After all, there is little point in going through a dispute resolution process of this sort unless you come out of it with a decision that is capable of enforcement without undue delay and cost.

The most controversial aspect of the rules when first published was undoubtedly the power conferred on the adjudicator by clause 17. This provided that the adjudicator could, when he or she considered it impossible to decide the dispute on the basis of strict legal entitlement within the 28-day timescale, decide the dispute on a “fair and reasonable” basis. Undoubtedly, this provision has assisted adjudicators to reach decisions in a number of cases where they might otherwise have considered resignation. TeCSA believes that resignation in such circumstances is not in the parties’ best interests.

Feedback suggests that parties in an adjudication do expect to receive reasons for an adjudicator’s decision

In terms of making adjudication decisions as bullet-proof as possible for the purposes of enforcement, clause 14 of the rules gives the adjudicator the power to decide his own jurisdiction. Without such a provision, which is fairly unusual, the adjudicator would not be empowered to make a binding decision. What normally happens in such circumstances is that the jurisdiction issue is simply held over until after the adjudicator has reached its decisions and the successful party seeks to enforce the substantive decision through the court. Version 2.0 clarifies that a decision by the adjudicator on his or her own jurisdiction cannot be reopened by the losing party.

Probably the most controversial change introduced by version 2.0 relates to the requirement for the adjudicator to produce reasons for his or her decision should one of the parties so require. Previous versions of the rules stated that reasons would not be given. This approach sought to avoid unnecessary cost and reduce the scope for disappointed parties seeking some basis for challenging a decision. Also, from the adjudicator’s point of view, there is little worse than finding out late in the day that you must produce reasons as well as a decision within the 28-day period.

However, feedback suggests that parties involved in adjudication do expect to receive reasons for an adjudicator’s decision. Any additional cost this might involve seems of secondary importance to them. Accordingly, version 2.0 says the adjudicator must give reasons if requested, but the request must be made no later than seven days after the referral document is served.