Forcing the courts to uphold blatant abuse

It's an axiom of any law that loopholes will be found to circumvent it. The Construction Act is no exception to this law. It was designed to stamp out contractual abuse, but as any subcontractor will tell you, ways have rapidly been found to foil the effects of the Act.

The Construction Act was never going to lift the industry into a 'sublime' state of harmonious contractual relations, but it has now unquestionably reached the ridiculous. The case in point is how main contractors have found a wonderful way to punish subcontractors who resort to adjudication.

The adjudication process introduced by the Act is meant to allow subcontractors to put pressure on main contractors to pay monies owed without having to resort to the huge expense of going to court.

However, in a recent case in Liverpool (see main story on page 3) a main contractor inserted a clause stating that if it was taken to adjudication the subcontractor would have to pay both sides' costs whether it won or not. And this is exactly what has happened. The subcontractor won, but now has to pay all the costs.

The Courts have been forced to uphold a quite blatant piece of contractual abuse, which any right-minded person would clearly regard as being unfair, if not downright immoral. If this isn't lunacy in action it's difficult to know what is.

It seems perfectly clear that the Government's promise to review the Construction Act after two years must go ahead, must be thorough and must tackle the loopholes in the new law. The silence from Government on the review is not encouraging.