The times they have a-changed

Some architects, surveyors or engineers are worried about finding themselves and their practices on the thick end of a negligence claim in adjudication. They are worried that it could take only 28 days to ruin their reputations.

Some judges are worried, too. One put the problem in the following terms: “It may, in one view, seem startling that a professional person acting as an adjudicator should be invited to rule, within 28 days, on the important and often difficult question of whether a fellow professional has failed in his or her duty to such an extent that there has been professional negligence.

“Yet, it seems, a proper understanding of the statutory language setting up the ‘exceptional and summary’ adjudication procedure permits this very result – although, importantly, a ‘provisional interim’ result”.

What this means is: it’s a rum business.

What it also means is that it’s a suitable subject for a debate. One hundred and ten adjudicators gathered in a room to argue the motion that “Adjudication is a suitable procedure for professional negligence claims”. For the motion was Philip Eyre, a solicitor from Glovers; against was another solicitor, John Redmond of Osborne Clarke, who is also a regular Building columnist.

Now, let’s not beat about the bush. While there are lots of arguments available to the debaters, and while they did deploy them, the real worry is that suing a professional is still regarded by many as “bad form, old boy”, whether or not the adjudicators are competent enough to take on the burden and whether or not 28 days is too tight a time to reach a fair decision.

Architects used to rule the roost, and this was no bad thing, but one day, builders became contractors the hand that used to tug forelocks became the hand that warmly shook the architect by the throat. Social rank slipped. Whinging contractors started to whinge at employers, claiming that this confounded professional of yours caused my “loss and expense”, and when the employer forks out for losses caused by his professional adviser, he tends to claim the money back from that adviser.

But doing that still sticks in the craw of some. Bad form to sue a professional. Worse still, say some, is that parliament has made it ever so easy to do it. Parliament invented the Construction Act and that means that an employer can seek compensation from his professional at the drop of a hat. Gone are the days where it was necessary to deploy Her Majesty’s High Court. Blow me, you can get an adjudicator appointed by noon tomorrow and wallop, the feathers fly.

And then comes problem number two: adjudicator competence. This is not valuing variations or the global loss on disrupted working, or even extension of time. This is, professional negligence.

As that judge said, professional negligence is difficult. Even lawyers think twice about this special category of contract. So, the word is put about that it takes a special adjudicator to adjudicate this special area.

The truth is, it does take special training to cope with adjudicating prof-neg disputes. Indeed, two years ago Robert Stevenson, a lawyer with Berrymans Lace Mawer, and I urged the RICS, the RIBA, the Institution of Civil Engineers and the Association of Independent Construction Adjudicators to do special training courses for adjudicators in this area. We were nicely listened to and that’s all. Please train, test and label a bunch of adjudicators to deal with prof-neg disputes.

So what about the 28 days? A senior judge, Lord Justice May, recently said: “It’s common experience that the policy of the statute to provide a speedy mechanism for settling disputes is sometimes not achieved, as when a large dispute, unrelated to immediate cash flow and not suitable for speedy resolution, is oppressively squeezed into the short timetable required by the act.”

Well, that’s what used to happen, but not so much now. The 28-day timetable is often abandoned. There is a real fear that signs of “oppressive squeezing” will rebound on the party with the burden of proof. So if you bring a prof-neg claim containing “important and often difficult questions as to whether a professional has failed in his or her duty” and you attempt to prevent the defendant from answering the case, or stifle a full examination of the facts, there’s a real chance of having your case thrown out.

The motion was carried. I couldn’t help musing: “Did the 110 adjudicators adjudicate, or did they vote on their own opinion instead”?