DRAFT

Scottish Region

Synopsis of the Seminar

The seminar was held at Heriot-Watt University, Edinburgh. It was extremely well attended with more than 50 delegates taking the room to its maximum level for fire regulations. Unfortunately this meant that one or two delegates were unable to attend. The general feedback from those who attended was very positive.

The three speakers were Keith Bishop, Partner in the Construction and Engineering Group of DLA in Edinburgh, Neil Kelly, Partner in MacRoberts Solicitors Edinburgh and David Scott, Partner in McGrigor Donald's Construction and Engineering Unit based in Edinburgh.

The speakers legal practises are amongst the biggest in Scotland operating within the construction and engineering fields.

Keith started off the evening with a lively talk on some very relevant cases affecting civil engineering in particular. These were:

• Arum Investments Ltd -v- Avonforce Ltd
• Loudonhill Contracts Ltd -v- John Mowlem Construction Ltd
• Lafarge Redlands Aggregates Ltd -v- Shephard Hill CE Limited
• Blyth & Blyth -v- Carillion

Next Neil Kelly explained to us the introduction of the Scottish Arbitration Code by ICE. Along with many arbitration practitioners in Scotland he harbours some doubt about the way it has been implemented by ICE but is a fervent supported of the Code as are most people. Scotland's leading Arbitration Act comes from 1695 and although there are steps afoot (involving ICES) to introduce statutory provisions equivalent to but rather different from the English and Welsh 1996 Act. Neil considered the relevant aspects of the Code and how they would impinge on the practice of civil engineering arbitration. Neil is very much involved in hands on with arbitration. He frequently represents parties in arbitration or sits as Clerk to the Arbiter. Because of this experience he was able to typify uses of parts of the Code. Some of his remarks were moderately controversial but generally he supported the Code as a huge step forward from where we had been in Scotland before, which was precisely nowhere. Obviously it will take some time for new contracts under the ICE forms to come into being and even longer for disputes going to arbitration. However, this was an excellent primer for everyone who has the potential to be involved in such matters.

David Scott next spoke on developments in adjudication. Although of necessity he spoke of several cases that were more involved in the building industry. However, he brought these back to bear on the civil engineering forms of contract and NEC. In addition to a very comprehensive review of the current state of cases he summarised wherein the courts were contradicting themselves and also where there were emerging Scottish and English divisions between the way the courts were regarding errors in adjudicator's decisions. In addition to his review of adjudication cases he also considered the revised provisions of the Civil Engineering Contract relating to adjudication. As is the case with significant numbers of practitioners in the field he believes that the ICE modifications to the standard forms involving a notice of dissatisfaction falls foul of Housing Grants thereby introducing the Scheme. This unfortunately has the by-product taking parties away from the adjudication Scheme which is generally held in high regard and which was partly offered by ICES. It was suggested from the floor that perhaps ICES should lobby ICE to reconsider the amendments.

Question and answer time was a lively affair with some highly controversial questions being posed. Despite the fact the three solicitors frequently find themselves in opposition one to the other they were remarkably at one with the answers. There was quite scathing criticism of the adjudication process from the floor and as a result a straw poll was taken. The question was "In Scotland would you prefer complex civil engineering dispute to be resolved using the new Arbitration Code or statutory adjudication?" Those in favour of statutory adjudication - no hands. Those in favour of the new Code - all hands. A very telling question was asked and that was "Why was construction and engineering singled out for statutory intervention in dispute resolution leaving other equally litigious industries to put their own house in order?" The universal answer was votes. The generally held view was it had been politically expedient for the government of the day to listen to various high profile groups purporting to represent the industry and it had been politically expedient to do so. Controversial - yes, interesting - yes, a success - definitely.