Jump on 5 years and with no move made by the department to have a new panel formed the Tánaiste and Minister for Enterprise, Trade and Employment confirmed, the second Adjudication Panel under Section 8 of the Construction Contracts Act. The second panel was formed by reappointing the first panel until the 7th March 2021 in order to allow the department the opportunity to run an appointment process for a new panel. The department commenced this process on 9th December with publication of expressions of interest to be submitted no later than the 11th December 2020. This process will continue in the early part of 2021 with appointments clearly envisaged in advance of the 7th March 2021 when the current panel appointments cease.
So what if anything have we learned from the initial panel period?
In September 2020, under a freedom of information request I wrote to the Department of Trade, Enterprise and Employment, to seek information in respect to the number of appointments by the panel in the period and the number of appointees that arose from those appointments. I also requested details in respect to the number of appointments each member of the panel received in the period. I was very surprised by the response. Bizarrely for a publicly appointment panel that was formed through statute the department reverted to state:
"I am sorry to inform you that we cannot locate the records and that I must therefore refuse your request"
The response went on further to state:
"Section 15(1)(a) of the ct states that an FOI request may be refused if:
'the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.'
'all reasonable steps to ascertain its whereabouts have been taken'"
So the department in which the adjudicator appointment service is operated out of, the department to which applications for appointments of adjudicators under the Act are made to and from which the appointments by the Chair of the panel are confirmed, does not have the records of who they have made appointments to……
Unperturbed by the initial setback (a setback I had never envisaged) and eager to understand the reason for such a position, I contacted a public representative for assistance. On the 13th January 2021, in response to a written freedom of information request by Mr Ged Nash TD, the Department provided the majority of the details that had been refused under my initial request. The response received provided some interesting and concerning details.
- In total from the commencement of the Act to the 30th November 2020, a total of 96 appointments were made by the Panel.
- In the 5 year period of appointment’s only 18 of the 30 members of the panel received an appointment. 12 members of the panel received no appointment (40% of the panel members).
- 3 members of the panel have received 10 or more appointments each and the three members of the panel account for 38% of all appointments from the panel.
- The highest number of appointments made to a single member over the period is 14 number cases.
- Only 1/3 of the panel (10 members) have received 5 or more cases over the period.
The response did not give the names of the members appointed as it was stated that as the payment disputes “are private law contractual disputes, it would not be appropriate to disclose the names of the members of the Panel to whom disputes have been assigned”. Given no information was requested in respect to any disputes it is unclear as to how the identification of who received appointments from the panel in any way conflicts with the private law contractual disputes of parties.
As we seek to build momentum around Adjudication in Ireland it is very disappointing to note that 40% of the Ministers panel of Adjudicators have never even received an appointment in the 5 year period. The very basis for having a single managed panel of Adjudicators in the legislation was to ensure that experience could be gained by the adjudicators to assist in ensuring the development of excellence and expertise in the area. It would appear that for some reason this has not happened in the first cycle of our panel. It is further disappointing to see a large number of appointment’s centered on a very small circle of adjudicators, an issue that clearly must be addressed by any new panel.
Those who operate in the area will agree that Adjudication provides a real and effective option for parties in respect to the resolution of payment disputes. In order to be effective the need for an experienced pool of Adjudicators is a vital component. Diversity, Equality and Transparency are all buzz words that we regularly hear in business and politics but never more so than in the formation and operation of the new panel of Adjudicators do we clearly need these buzz words to find their way into practice……..
I would again like to thank Mr Ged Nash TD for his assistance in attaining the statistics from the Department as outlined in this piece.
Keith Kelliher is an Accredited Adjudicator, who has completed the Diploma in Adjudication in University College Dublin, specifically on the Construction Contracts Act 2013, and has represented Main Contractors and Sub-Contractors in payment disputes for over 22 years in the Irish construction industry. Contact Keith at firstname.lastname@example.org for any assistance with any form of construction contract or payment issue. This article is a commentary piece and does not constitute nor should it be relied upon as legal or professional advice.