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RJC Consultants Newsletter No.5 March 2005 |
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2004 proved to be a successful year for RJC Consultants and business has boomed to such an extent that not only have we relocated our Head Office to larger premises in Bristol, but we have also opened a third office in Leicester. To cope with the increased work-load we have also seen an increase in staff and subcontractors. Marketing RJC also hosted a day out at the Premiership Rugby fixture between Gloucester and Bath. This local derby match was an intriguing and hard fought affair, with much to reflect on over a post match pint or two. We will imminently be hosting our new Head Office launch evening. Although we are now situated further out of Bristol city centre, access is much easier from the M32 and Parkway railway station, so we are hoping that this event will prove popular.
New RJC Bristol offices The Early Bird… The increasingly used ECC suite of contracts (spawn of Latham) can appear as a refreshing change to a more traditional form with its clear language and apparent brevity, when first used. Similar can be said for PPC 2000 and its brethren, which tackle the perceived problem of fragmentation in the industry, as identified in Rethinking Construction. Taking ECC, by way of example, a contractor, comfortable in the knowledge of the equitable intent of the standard form, should not sit back in this knowledge, lest he be caught out. A professional and independent review of the risk burden and explanation of duties and liabilities is invaluable for a successful contracting relationship. If the procedures and proformas are trained in to the key people, the administration will be simple and cost effective. RJC can provide these services and “catch the worm”! |
Dispute Resolution Update The upside of multiple Adjudications are that complex disputes can be broken down into “bite size” pieces. The decisions reached can be applied to the ongoing final account discussions and resolve large areas of disputes in messy negotiations. In so doing there is a narrowing of issues in dispute. Not withstanding this it may take several separate Adjudications to bring the parties to a position of settlement. The downside of this approach is to increase the time period for resolution and duplicate the party’s costs (which of course are non-recoverable in Adjudication). Maybe it is becoming time for this industry to revisit arbitration (or litigation if permitted) to deal with these more complex disputes. The fact that Arbitration practitioners have had a hard time of it since the introduction of Adjudication together with the various initiatives highlighted by us in previous newsletters may mean we can avoid the worst vices of the old style Arbitrations which failed this industry in the past. RJC is noticing an upturn in instructions involving Arbitration. This may be a coincidence. Alternative Forms of Dispute Resolution It would seem that Adjudication is here to stay and for many types of dispute it works reasonably well. More often than not it provides a decision, which is accepted by the parties as the final outcome of the dispute, but that doesn’t mean that all types of dispute are suited to Adjudication. Should you be on the receiving end of a decision that you don’t like, you’re probably stuck with it unless you decide to arbitrate or litigate – either way an expensive business! Put yourself in the shoes of a nominated Adjudicator. It is probable that he/she has no previous knowledge of the details of your dispute. However, you have lived with this problem for a long while and the only way of getting the matter settled, as far as you can see, is for third party intervention. Consider: is the Adjudicator going to understand the detail of all the issues, understand both parties’ positions and be able to reach the decision that you would like him/her to reach, all within a 28 (or 42) day period? So what other choices are there? Initially, consider whether the route of negotiation really is exhausted. Should this be the case it may be more appropriate to consider Mediation, a relatively cheap and quick process where a third party facilitates dialogue between the parties in order that they try and reach their own solution. Alternatively, consider Conciliation, similar to Mediation except that the Conciliator can suggest a solution. However, Arbitration may be more appropriate, though it is quite possible that the issues in dispute are too complex to be suited to Adjudication. Independent Expert Determination may also provide a more appropriate solution. Even if you are convinced that a party is about to issue of notice of Adjudication against you, it’s still not a “fait accompli”. You could consider issuing the notice of Adjudication and being the referring party. The advantage of this being that you set the Adjudicator’s jurisdiction and the matters to be decided. For further information about Alternative Dispute Resolution contact any RJC office.
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