Guide to Using the RIBA Professional Services Contracts 2018 - Other - Page 71
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Guide to RIBA Professional Services Contracts 2018
Originally the intention of the Construction Act was that the process would be fairly
informal, but it has developed into a formal process with parties serving detailed
submissions, witness statements and even expert reports.
The adjudicator may allocate the costs relating to the adjudication, including the fees
and expenses of the adjudicator, between the parties.
Consumer clients
The right to Adjudication does not apply to contracts with ‘residential occupiers’, i.e.
domestic clients, but the RIBA PSCs provide for all parties to have a contractual right
to adjudication.
A consumer has the statutory right to refer any dispute to the courts but any other
options must be negotiated with the Architect/Consultant. A consumer client may
choose the RIBA Adjudication Scheme for Consumer Contracts, which may be
suitable for modest value claims or could select another scheme to apply to more
complex problems. Alternatively, they could opt in to include the arbitration provisions,
perhaps to keep the matter private. The RIBA Domestic Project Conditions provide
for settlement of disputes by negotiation, mediation or adjudication and arbitration
although the latter this could be considered unfair under the UTCCR Schedule 2.1(q)
unless the clause and its effect has been fully explained in advance.
Arbitration or litigation?
The parties may choose between arbitration and litigation for settlement of disputes.
When making the choice it should be noted that:
• whatever the choice, either party may require the matter to be referred to
adjudication in the first instance
• Arbitration is carried out in private whilst the courts are generally accessible to the
public and the press
• the choice of arbitration may eliminate the risk of being caught in multi-party
litigation, although the joinder provisions of the CIMAR rules may be relevant
• some of the differences between arbitration and litigation have been reduced
following the Arbitration Act 1996 and Civil Procedures Rules
• a ‘consumer’ client has the right to decide whether litigation or arbitration will be
the final forum for settling disputes.
What is arbitration?
Arbitration is another form of ADR with the aim of resolving disputes outside the
courts. The dispute is decided by one or more persons, the Arbitrators, who produce
a formal award after both parties have put their cases. An arbitration award is legally
binding on both sides and enforceable in the courts.
Where the law of England and Wales or Northern Ireland applies, any dispute
governed by an arbitration clause will be subject to the Arbitration Act 1996 and
have to go to arbitration, but the courts may ‘stay’ proceedings if either party prefers
adjudication.
In arbitration, disputes or differences between Client and Architect/Consultant are
decided in private and in confidence by an arbitrator, who might be chosen by
the parties or appointed for particular expertise in addition to their experience of
construction industry disputes. The arbitrator decides or agrees the procedures and
the timetable, following the principles of the Arbitration Act 1996. Such procedures
can be chosen to suit the nature of the dispute, taking the form of a short hearing
on a building site or a ‘documents only’ submission or a full hearing following
exchanges of statements of claim and defence.
It should be noted that, if arbitration applies, the option of litigation is not available
except for a dispute where the amount is less than £5,000, or for enforcement of a
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