REUTERS | Toby Melville
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Anyone with a substantial adjudication practice will have experience of a lay client asking these questions (or some version thereof):

“Why can’t we call them crooks? They [the other party] are clearly fraudulent. Why can’t we say so?”

As a legal practitioner you have to patiently explain that fraud can only be pleaded on specific instructions and must be supported by prima facie evidence. However, despite the reluctance of lawyers to plead fraud, it is a fact that fraud has always been an issue in adjudication and in these days of the “smash and grab” adjudication, Coulson J’s (as he then was) decision in Grove Developments Ltd v S&T (UK) Ltd notwithstanding, alleging fraud is an increasingly attractive argument of last resort to avoid making payment following an unfavourable adjudication decision.

In Gosvenor London Ltd v Aygun Aluminium UK Ltd, Fraser J had reason to consider the relationship between fraud and adjudication. In a case with some extraordinary facts, he restated established principles and also made some new law by expanding the ways in which allegations of fraud can be deployed in an attempt to avoid paying sums awarded by  an adjudicator to a party suspected of questionable behaviour. Continue reading

REUTERS | Eloy Alonso

Recently, in the course of reviewing a proposed building contract for an employer, I had cause to consider how responsibility for obtaining planning consents had been addressed. Or rather, whether it had been addressed at all. Jean-François Clin v Walter Lilly & Co Ltd is a forceful reminder to effectively deal with this issue. The Court of Appeal held that, in the absence of an express term to the contrary, a term was implied into the parties’ contract requiring the employer to obtain planning permission for redevelopment of the property and, generally, making the employer responsible for obtaining necessary consents. Continue reading

REUTERS | Amir Cohen

Bias and apparent bias is a subject that has cropped up many times on this blog, whether it was an adjudicator “phoning a friend“, an arbitrator (allegedly) being appointed too many times by the same referring party (although that isn’t one of mine!) or a judge getting upset over his lost luggage (who wouldn’t be?).

It seems anyone involved in court or tribunal work is vulnerable to an accusation of it. Therefore, it should come as no surprise that I’m commenting on another example of behaviour that gives rises to the charge. Continue reading

REUTERS | Clodagh Kilcoyne

Last week, Fraser J handed down his judgment in Gosvenor London Ltd v Aygun UK Ltd, a case in which the defendant (Aygun) was seeking to resist payment of an adjudicator’s award of around £650,000 on the grounds that a substantial part of the award was allegedly derived from fraudulent invoicing of Aygun. In the alternative, Aygun sought a stay on the basis of fraud, alleged witness intimidation and, most importantly, the entirely unsatisfactory nature of the claimant’s (Gosvenor) statutory accounts for 2016/2017 and the unbelievable explanations given on its behalf as to the contents. This combination of factors led the court to conclude it was unlikely that Gosvenor would repay the adjudicator’s award, were it required to do so following a challenge to the adjudicator’s decision in subsequent TCC proceedings.

Fraser J’s judgment is important for a number of reasons. Critically it has added a further principle to those set out by HHJ Coulson QC (as he then was) in Wimbledon v Vago in order to deal with the factual situation presented to it. Continue reading

REUTERS | Srdjan Zivulovic

Coulson J’s decision in Grove Developments Ltd v S&T (UK) Ltd has triggered a great deal of commentary, including Jonathan Cope’s post, which I read with great interest. It got me thinking about what strategies an employer or contractor might adopt to counter a smash and grab adjudication, either pre-emptively or after the referral has landed. Continue reading

REUTERS | Vijay Mathur

Just like experts are a recurring theme on this blog, it seems that project monitoring is too, as I have considered the judgment in Bank of Ireland v Watts Group plclooked at the judgment in Bank of Ireland v Faithful & Gould Ltd and I have also discussed the judgment in Lloyds Bank plc v McBains Cooper Consulting Ltd.

I’m back looking at Lloyds Bank plc v McBains Cooper Consulting Ltd this week, as the case has been before the Court of Appeal. It is quite a tough one because the original judgment was long and complex (I called it a “monster judgment” at the time), and much of the appeal turns on the facts (which won’t necessarily be of interest). However, here goes. Continue reading

REUTERS | Navesh Chitrakar

I like reading Fraser J’s judgments. Where else would you get phrases such as “banter in a public house during consumption of a gallon of ale (or lager)” and “quite apart from any illumination of the wisdom (or otherwise) of discussing (still less agreeing) incentive payments of such extraordinary size at an evening of drinking in the Horse & Groom”, nestled in among legal analysis? (He was talking about Blue v Ashley, which I’m sure was an interesting informal business meeting!)

But, back to the point. And that is about witness evidence and what Leggatt J once called the “faulty model of memory as a mental record”.

A few years ago, I wrote about Leggatt J’s comments in Gestmin SGPS SA v Credit Suisse (UK) Ltd. I followed that piece a year or so later with some observations following Jefford J’s judgment in Dacy Building Services Ltd v IDM Properties LLP. That case has been back before the court (as Jonathan discussed last week) and it is where my Fraser J quotes were taken from. Continue reading

REUTERS | Regis Duvignau

Two recent judgments illustrate the difficulties that oral contracts can cause in adjudication enforcement proceedings. The first was Jefford J’s judgment in Hart v Ideal and the second (although actually the first in time) was Fraser J’s judgment in Dacy v IDM (which had also been before Jefford J a couple of years earlier). Continue reading