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Issue No 11 on the DTI consultation document about adjudication is all about 鈥渕agic dust鈥�. The issue is whether a person who ordinary everyday law says is not impartial, and ordinary everyday people say is not impartial, can be blessed with fairy dust by the Westminster fairy and made impartial. Oh, cut to the chase, Bingham! Please, please do not allow a person to make binding decisions when he has a personal interest in the decision. The DTI is asking you to give the thumbs-up to adjudicators being able, contrary to common law, to make binding decisions about their own right to be the adjudicator. No, no, a thousand times no.

Give me an adjudicator who decides disputes on the facts concerning 鈥淎鈥� and 鈥淏鈥�, and the law governing 鈥淎鈥� and 鈥淏鈥�, without a sniff or hint of bias. But save me from a bloke who knows that if he decides he has no jurisdiction, he loses his fee from the appointment. Or the bloke who, even if he is not actually biased in his own mind or pocket, has the appearance of bias. Parliament will go wrong to oust the common law 鈥� it will bring adjudication into disrepute. Do not empower adjudicators to decide their own jurisdiction. Get an outside adjudicator to decide.

Issue No 10 is 鈥減reventing stakeholder accounts鈥�. Apparently, some contract documents create a contractual term, which 鈥渞equires鈥� the adjudicator not to order monies to be paid over; instead the money gets locked away. The DTI proposes outlawing all that. But it can all come back again in the Scheme for Construction Contracts if the payee (the winner) 鈥渋s [found to be] subject to insolvency proceedings鈥�. The adjudicator is to be asked to be the keeper of the award as 鈥渢rustee鈥� for one month. In that time, the payer must begin litigation or arbitration or else the award is released. Who on earth thinks of these bright ideas? Don鈥檛 burden the adjudicator with this bumph. The adjudicator is merely a person who decides arguments between 鈥淎鈥� and 鈥淏鈥�. If the law allows 鈥淎鈥� and 鈥淏鈥� to have a stakeholder account enshrined in a contract, so be it. Change the law of contract, not the powers of an adjudicator. Adjudicators 鈥渁djudicate鈥� on the rights, wrongs and evidence 鈥� don鈥檛 give them special laws to wield. The powers held by an adjudicator are only for the due process of adjudicating. He can hear an argument about unfair contract terms and declare a term of no effect because the law of contract says so. He can鈥檛 overrule a contractual term because he is an adjudicator. The Scheme is merely a set of rules for administering the adjudication 鈥渄ue process鈥�. You can鈥檛 change the law of contract by changing the Scheme.

Issue No 12 again tries to overrule what the parties have contractually agreed to. Say 鈥淎鈥� and 鈥淏鈥� agree in a binding contract that decisions of the certifier (such as the architect, contract administrator or engineer) are 鈥渇inal and conclusive鈥�. So if 鈥淎鈥� or 鈥淏鈥� complains about an architect鈥檚 loony certificate, that鈥檚 that 鈥� it鈥檚 useless to complain. But the DTI says that sounds a bit orf. So, says the DTI, let鈥檚 give the adjudicator a magic wand and a sack full of magic dust. Let the adjudicator sweep aside the final and conclusive nature of the agreed term. Let him declare it void for interim accounts.

If you want to change the law of contract, change the law of contract. Don鈥檛 empower a dispute decider to change the law of contract

Stop it, stop it! The adjudicator can鈥檛 change the contract; he only adjudicates quarrels about the contract. Repeat after me: 鈥淚f you want to change the law of contract, change the law of contract.鈥� Don鈥檛 empower a dispute decider to change the law of contract. I repeat again, the Scheme is merely about due process; it can鈥檛 change the law of contract. If you want to change that law (like outlawing paid when paid) you must make primary legislation for law of contract. If an architect purports to make a 鈥渇inal and conclusive鈥� certificate and purports to shut out any dispute going to an adjudicator about that certificate, it will be an uphill shut-out. If the architect has behaved one fraction less than judicially, his so-called 鈥渇inal and conclusive鈥� certificate is useless. There is no reason why a dispute about the architect鈥檚 fairness shouldn鈥檛 come to adjudication. And if the offered bargain contains such a clause, why not tell the offerer to offer it to the fairies?

Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper 好色先生TVs, Temple, London EC4 7EY, or email him on info@tonybingham.co.uk