Alternative dispute resolution (ADR) seems to be growing in popularity and is now available in several forms, most of which the construction sector has benefitted from, particularly adjudication. The industry remains the only sector to have had adjudication thrust upon it by legislation, but its success in construction has been noted elsewhere in the legal and business world.
Encouraged by adjudication’s success in construction since 1998, the Ministry of Justice last year launched a pilot scheme to make adjudication available for professional negligence disputes, under the supervision of Mr Justice Ramsay. It was confined to claims against solicitors, the value of disputes was limited to £100,000 and the adjudicator’s fee was also capped.
Now the pilot has been relaunched by being extended to include other professions, except medical, the £100,000 cap has been removed and the cap on the adjudicator’s fee has been relaxed by introducing banding. Construction professionals already have access to the industry’s statutory scheme so guidance published with the new pilot advises that they should ‘give very careful consideration’ to the desirability of using the new Scheme – meaning why would you when you already have an adjudication scheme that works?
It may be unlikely to find much uptake in construction, where adjudication is compulsory, but it is still interesting to see the favour that adjudication as a method of ADR is gathering because of its use in the industry.
The Ministry and the judges involved in the extended pilot certainly seem to like adjudication, even though they stop short of making it compulsory. In an introduction to the extended pilot High Court judges Mr Justice Carr and Mr Justice Fraser say: ‘Adjudication has, in the construction sphere, been seen as a considerable success since its conception in 1996, helping to resolve a great many disputes without the need for the parties to become involved in litigation or arbitration. They still have the opportunity to do so, of course, but in a very large number of cases both parties are content to accept the decision of the adjudicator. They therefore have a decision much faster, and very much cheaper, than they would were they to litigate.’
ADR ‘in all its forms’ is popular with the judges involved, who say it presents ‘real advantages to parties involved in disputes’. The pilot scheme rules have been refined and detailed guidance on how to use adjudication has been published. The guidance notes say it should be seen as a form of ADR, but not intended to supplant other forms of ADR, although they acknowledge that it may do so.
Its intent, as with adjudication in construction, is to enable parties to obtain a quick adjudication at relatively minimal cost, which will be binding upon the parties unless one or both of them are so dissatisfied that they take the matter to a court or arbitration hearing. It does not supplant the jurisdiction of the court or arbitral tribunal, but offers a chance to obtain a reasoned decision which will either resolve the dispute or steer the parties towards resolution.
Feedback from parties using the pilot scheme will help shape the final professional negligence adjudication process. Construction will view the feedback with interest for possible indications of future changes in its own adjudication regime. Watch this space.
Nick Barrett
Editor