Report sheds light on construction adjudication

[A NEW REPORT from researchers at King’s College London (KCL) has provided a snapshot of the UK's construction adjudication infrastructure. It found the system for construction adjudication to be ‘robust and resilient’, while noting concerns over bias and a lack of diversity in key roles.

The report, 2022 Construction Adjudication in the United Kingdom: Tracing trends and guiding reform, provides the broadest and deepest empirical analysis of UK construction adjudication to date. Co-authored by Professor Renato Nazzini and Aleksander Kalisz of KCL’s Centre of Construction Law and Dispute Resolution (CCLDR), it looks at the experience of construction adjudication in the UK from the perspective of users and key organisations, and provides an analysis of vital empirical data on key aspects of adjudication.

Professor Nazzini commented: “This report provides a comprehensive account of the state of play regarding adjudication in the United Kingdom. Our objective has been to gather and analyse reliable data that can inform practice and guide legal developments and reforms. Our analysis shows that adjudication is fit for purpose but there are also areas for potential improvement, for example when it comes to the disclosure of conflicts of interests, the diversity of adjudicators and so-called ‘smash and grab’ adjudications.”

The report analyses data drawn from two questionnaires: one addressed to adjudicator nominating bodies (ANBs) and the second addressed to individuals involved with statutory adjudication. Ten ANBs replied to the first questionnaire and 257 individuals replied to the second.

Statutory adjudication was introduced in the UK in 1998 and the report finds that referrals have steadily increased, reaching an all-time high in the year to April 2021. That suggests, the authors argue, that Brexit and the COVID-19 pandemic have not significantly affected the upward trend in adjudication referrals.

The authors found that: • Parties predominantly comply with adjudicators’ decisions: 25% of questionnaire respondents said that they have never experienced an adjudicated dispute being referred to litigation or arbitration and 42% of respondents replied that this occurs in less than 5% of cases. • Nearly half (40%) of respondents suspected that on at least one occasion the adjudicator was biased toward one of the parties. The main cause of the suspicion of bias was the adjudicator’s relationship with the parties or party representatives. • Few British ANBs publish the composition of their adjudicator panels online. Among the eight that do, women account for only 7.88% of listed adjudicators. There is no data on the representation of people with other protected characteristics. • Over half (58%) of respondents felt that adjudicators' decisions should not be published; however, 30% replied that they should be published with redactions, following the model adopted in Singapore.

In his Foreword to the report, Lord Justice Coulson wrote: “I enthusiastically commend this report to anyone involved or interested in construction adjudication. I suspect that its publication will come to be seen as a seminal moment in the story of this unique dispute resolution process.”

The report is the first output of a three-year CCLDR research project, produced with the support of The Adjudication Society. q