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1 Introduction
The construction industry is inherently litigious and the relationship between parties involved in construction projects may often be adversarial in nature. Even under partnering conditions, if the contract is complex, the possibility of disputes arising is likely ([34] Lowsely and Linnet, 2006). While more traditional modes of resolving disputes such as litigation, pre-trial negotiations and arbitration may be deployed in the Scottish construction sphere, the adversarial nature of such processes may hold deleterious consequences for parties in terms of financial costs, delays, risks and ensuing loss of business. The creation of the Scheme for Construction Contracts and the enactment of the Housing Grants Construction and Regeneration Act 1996 led to the development across the UK of the adjudication process first proposed in the [30] Latham (1994) report. Although heralded as a quick, efficient means of resolving construction disputes, concerns regarding adjudication have long been expressed ([37] Macauly, 1999) and the process has endured a chequered reputation of late, both in terms of the costs for parties involved and the quality of decision making rendered ([59] Uff, 2005).
Judicial opinion in cases such as Macob Civil Engineering Ltd v. Morrison Construction Ltd [1] would seem to suggest that at times the adjudication process has spawned into a creature much more expensive and confrontational in nature than originally intended by parliament. Scepticism as to the suitability of the process for more complex construction disputes was also expressed by HHJ Coulson QC in William Verry (Glazing Systems) Ltd v. Furlong Homes Ltd [2] . In summing up the case, the judge stated:
Whilst such adjudications are not expressly prohibited by the Housing Grants, Construction and Regeneration Act 1996 as it presently stands, there is little doubt that composite and complex disputes such as this cannot be accommodated within the summary procedure of adjudication[3] .
Complex disputes can involve delays, disruption, extensions of time, technical determinations, debate over facts and detailed examination of contractual terms and underlying legal norms. In these circumstances, it may be difficult to see how the adjudicator is expected to arrive at a legitimate decision within the statutory 28-day period based solely on the documentary submission provided, and any other evidence that is available, such as physical evidence on site.
1.1 The emergence...