CHAPTER 1: OUTSTANDING ISSUES FROM THE SCOTTISH EXECUTIVE REPORT ON THE CONSULTATION 'IMPROVING ADJUDICATION IN THE CONSTRUCTION INDUSTRY' IN 2003
1. Minimising Divergence
It is a long established policy that, though responsibility for Part II of the Housing Grants, Construction and Regeneration Act 1996 has been transferred to the Scottish administration, where possible the cross border administrations will work together to ensure that divergence in effect should be minimised. Although it is accepted that certain legal differences between Scottish and English Law may necessitate modest differences in approach (as is already the case), the Scottish Executive hope to keep these to a minimum and have been working with colleagues in BERR to achieve this aim, as we are conscious of the desire to maintain parity of legislation across United Kingdom for the construction industry.
The Scottish Executive's consultation on Improving Adjudication in the Construction Industry in 2003 asked respondents for their views on maintaining cross border uniformity so far as is possible and found general support. This consultation is again seeking respondents views on the need to minimise any divergence across the United Kingdom, ( see consultation response form).
2. Introduction of 'slip rule' to enable the correction of errors
An outcome of the Scottish Executive's consultation in 2003 on Improving Adjudication in the Construction Industry was the suggested need for a "slip rule" with the Scottish Executive's report on that consultation proposing that a "slip rule" should:
"… give adjudicators powers to correct their decisions so as to remove any clerical, or arithmetic, mistake or error that has arisen from an accidental slip or omission; and they should be permitted to do this at the request of any party to the adjudication, and where the adjudicator becomes aware of such an error. It is also proposed that adjudicators should be empowered to correct any other aspects of their decisions where the parties are in agreement that they should do so.
Any corrections of clerical or arithmetic errors are likely to be relatively straightforward, and so the timescale for notifying the adjudicator, and for making corrections, need not be particularly lengthy, bearing in mind the need to achieve relatively quick resolution of disputes. It is proposed, therefore, to amend the Scheme to provide that adjudicators may make corrections as soon as possible and by not later than seven calendar days after the date of issue of their decisions or such longer period as the parties may agree. This should allow sufficient time for corrections to be made without unduly delaying the process.
Consideration has been given to whether there is a need to set a time limit for parties to request an error to be corrected. It is felt that by setting a time limit on the period allowed for correcting a decision, and giving adjudicators discretion on whether or not they make a correction, there should not be a need to set a time limit within which the error must be brought to the adjudicator's attention."
We are seeking the views of respondents to this consultation on whether, in order to have a uniform effect across England, Scotland and Wales, BERR and the Welsh Assembly Government should work with the Scottish Executive to further develop proposals for a slip rule. In particular we are seeking the views of respondents on whether the slip rule should provide the adjudicator with:
- power to correct a clerical or arithmetic error or any other matter that the parties may agree
- for 7 days after the adjudicator's decision or such longer period as the parties may agree.
In England and Wales, it has not been necessary to introduce a slip rule as the courts have implied such a rule by reference to the Arbitration Act 1996. However if introduced in England and Wales, legislation would remove the courts' current discretion as to the time limits and applicability of a slip rule.
3. Expenses (but not adjudicators fees)
The Scottish Executive's consultation in 2003 on Improving Adjudication in the Construction Industry asked whether there was a problem in Scotland with regard to the award of expenses and what the nature of any problem was. Respondents indicated that there did appear to be some uncertainty amongst the users of adjudication about whether adjudicators can award expenses under the Scheme. Chapter 2. 3, Introduction of a statutory framework for the costs of adjudication covers this area and replicates the proposals in the DTI/Welsh consultation.