As John Redmond pointed out (5 March, page 52), the New Engineering Contract (second edition) has not really been tested by the courts.
This is a result of both the lack of commercial disputes and the popularity of adjudication as opposed to High Court litigation. The critics have labelled this contract a "project procedures manual" badged as a contract. That said, the lack of disputes under it does arguably suggest that it is working — even though the huge commercial clout of those promoting this contract, such as BAA, the NHS and the Highways Agency, suggests there could well be other factors behind this dearth of disputes.

The third edition of the NEC is due out at the end of this month. However, it is unlikely to seek to remedy what have been seen as the fundamental flaws of the contract. Soundings suggest that it is merely to be "tweaked". That said, it is likely that at least the adjudication provisions will be amended to ensure compliance with the Construction Act 1996. The flaws in these provisions were pointed out in John Mowlem vs Hydra Tight Ltd (June 2000). As far as other changes, that remains to be seen.

Postscript

Katie Graham, head of construction, Paul Hastings Janofsky & Walker, London