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The Scottish Judge in the recent case of ATG Services (Scotland) Ltd vs Ogilvie Construction Ltd [2024] CSOH 94 laid it on the line. He said: 鈥淭he defence to this action is entirely without merit.鈥� It was an adjudicator鈥檚 decision that awarded over 拢1m to ATG. But Ogilvie did not pay. So the groundworks subcontractor came to court to get the award enforced.

There was, said the judge, 鈥渁 squall got up by the defender鈥� Ogilvie, but none of it impressed the judge. Very experienced counsel for Ogilvie argued this way and that, and cleverly advanced all sorts of reasons to give the elbow to the adjudication award, but none of it, not even a teeny-weeny bit, got home. He enforced the award then required Ogilvie to pay the legal costs at the highest scale, saying it 鈥渇ell comfortably within unreasonable behaviour鈥�.

Let me tell you what鈥檚 up here. High-speed dispute resolution has trumped litigation. A device in the ADR stable such as adjudication has become embedded in our commercial world. It is flawed, yes. But not nearly as flawed as long drawn-out, immensely expensive litigation. Only those with deep pockets could afford to go to court. Adjudication, on the other hand, is a pocket battleship. It dashes in, dashes out and then 鈥� wallop 鈥� announces the result. It鈥檚 commercial.

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Ogilvie was the main contractor for a housing and care facility in Dalkeith. It appointed ATG for the groundworks package. The works progressed and interim accounts were paid. Then an interim account for 拢1,081,254.83 (excluding VAT) was not paid. ATG called on the Scottish 好色先生TV Federation to appoint an adjudicator. Beginning on 21 May 2024, the usual rounds and submissions, were made; and on 26 June the award ordered sums to be paid forthwith. So, that is five weeks from start to finish. It only took another six weeks, from start to finish in court, to enforce. There is no chance that litigation can come within a sniff of that timescale. Nor within a mile as to legal costs. True, true, high-speed ADR has a real risk that the timescale means shortcuts that will result in errors in the decision. Choose your poison.

Ogilvie attempted to argue that its opponent had failed to follow the adjudication procedure in the contract when it identified an email address, but ATG did not serve there. 鈥淚nvalid,鈥� said Ogilvie. No, it isn鈥檛, said the court. Seemingly, no one quarrelled with the error at the time of the adjudication. Argued as well was that the adjudicator came up with his own arguments, without telling the parties. That argument failed. Then it was argued that the published reasons in the award were not good enough. That failed too.

Only those with deep pockets could afford to go to court. Adjudication, on the other hand, is a pocket battleship. It dashes in, dashes out and then 鈥� wallop 鈥� announces the result. It鈥檚 commercial

Look, the high-speed process of ADR is intended to decide, on balance, which party shall have the money. That鈥檚 pro-tem binding. Pay up, say the courts. You are up against it if you try to beat down the adjudicator鈥檚 high-speed, possibly wrong decisions. Pay now; argue later. The court doors are still open if the losing party is minded to start all over again. Meanwhile this high-speed, shortcut system gives a binding result. Construction adjudication has shown the courts the way out of its awful, awful failure.

Now then, if you want or need a bang up-to-date guide on doing adjudication, there鈥檚 a new book out. It鈥檚 called Adjudicating Construction & Engineering Disputes and is by Matthew Malloy and Jonathan Cope (published by LPP, and 拢40.69 on Amazon). You might be relieved to know 鈥渋t is emphatically not a legal textbook鈥� 鈥� so says Sir Peter (Lord Justice) Coulson in the foreword, and he added 鈥渋t might be said to be much too useful to be that鈥�. That鈥檚 a very big compliment. The book鈥檚 purpose is to provide a practical and practitioner鈥檚 guide from the perspective of the adjudicator. And if, instead of being the hapless piggy-in-the-middle deciding the quarrels, you are one of the parties, it is ever so useful to gain an insight into the adjudicator鈥檚 job 鈥� more particularly, to know what the adjudicator wants from you.

Malloy and Cope have been appointed many times to adjudicate construction disputes over the years. I nearly called them 鈥渙ld-timers鈥�. Better to explain they are man and boy industry experts 鈥� brought up as quantity surveyors, then coaxed to learn the law, became barristers 鈥� and that鈥檚 what it takes. They tell you their book is intended as a 鈥渨alk through from the beginning to the end of an adjudicator鈥檚 involvement with a dispute under or in connection with a construction contract鈥� 鈥�  in other words, a cradle-to-grave guide.

In short, the book is a chronological journey in being the adjudicator and managing the procedure as well as managing the sometimes-difficult mardy parties. Bear in mind this is the authors鈥� own view on the process 鈥� a cautious view. In parts, the authors accept that other adjudicators do it (and are entitled to do it) differently. The reality is that we constructors invented and have moulded adjudication. And we are not finished yet!

Tony Bingham is a barrister and arbitrator at 3 Paper 好色先生TVs, Temple