Capper's opponent in the debate was Dr Julian Critchlow, partner at solicitor Fenwick Elliott. Two heavyweight thinkers. I will tell you what the debate was all about. When the Construction Act came along with its adjudication idea, the people at the Institution of Civil Engineers were in favour – except that this new referee was doing exactly what the engineer had 150 years. So they thought up a smart move. Engineers could still deal with disputes if they were called something different. The Construction Act says that disputes can come to an outside adjudicator at any time, but if and only if it is a dispute. The wheeze was to call a dispute a "matter of dissatisfaction" for one month and thereby prevent the adjudicator from coming on to the engineer's sacred patch.
Critchlow was plain. He said that the Construction Act was mandatory and that a dispute was a dispute was a dispute and no jiggery-pokery could change that. Capper completely agreed that the meaning of the word was laid down in law and was fully understood, but he argued that the law of contract allowed the meaning of a word to be part of a party's own dictionary.
He was absolutely right. Freedom to contract is under fire but not yet sunk. Nor did Critchlow disagree. Contract is powerful and contracting parties have significant freedoms. But he said that the change or temporary change in the word's meaning ran counter to the adjudication rules in the Construction Act and must fall.
When we were students, a pal of mine announced that he was to be known as female instead of male and marched into the ladies’ showers
He is right, and he is wrong. The ICE standard form document contains a perfectly lawful dispute management device, which I call ICE adjudication. It is contractually sound. No court will strike it down. If this device is used by the parties, the decision of the ICE adjudicator is enforceable. That is the sanctity of contract. It is lawful – but it does not take away either party's absolute right to call for an adjudicator under the Construction Act rather than under a non-compliant contractual adjudication clause. Any party can call for adjudication under the act at any time – without the ICE's one-month waiting period. Parliament plainly intended the word "dispute" to have its meaning in law and the whole thrust of the act is to allow immediate access to the referee. In other words, the parties can use either ICE adjudication or act adjudication.
A second motive for the one-month delay is that the ICE was worried about ambushes. The April 2001 DETR consultation paper, I notice, shows an interest in this matter, too.
Adjudicators are being encouraged to watch out for the ambush and boot it off the pitch. I will explain.
Postscript
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on info@tonybingham.co.uk.
