Monthly Archives: February 2010

REUTERS | Ilya Naymushin
February 26, 2010

February 2010 digest: adjudication practice develops and PLC launches its CRC survival kit

An English proverb says:

“If February give much snow, a fine Summer it doth foreshow.”

Regular readers of PLC Construction’s monthly digest will have noticed that it has been dominated by bad weather and environmental issues in recent months. That hasn’t changed in February, with the continuing wintry weather and the launch of PLC Environment’s CRC Survival Kit, which provides a “one-stop shop for information on the CRC Energy Efficiency Scheme, also known as the Carbon Reduction Commitment (CRC)”.

The kit followed a nutshell, an overview and a glossary on the CRC. We also published a note explaining its impact on the construction industry. Continue reading →

REUTERS | Ina Fassbender
February 24, 2010

What does “final and conclusive” under paragraph 20(a) of the Scheme mean?

Paragraph 20 of the Scheme for Construction Contracts states that an adjudicator “shall decide the matters in dispute”. The adjudicator may also take into account “any other matters” that are within the scope of the adjudication or are matters “under the contract”, which he considers are “necessarily connected with the dispute”. This extends, at paragraph 20(a), to opening up, revising and reviewing decisions or certificates unless they are stated in the contract to be “final and conclusive”.

It is all a bit of a mouthful. Basically, the Scheme gives an adjudicator very wide discretion indeed!

Continue reading →

REUTERS | Jumana ElHeloueh
February 24, 2010

Referral, Response, Reply, Rejoinder, Surrejoinder… Surely this madness has got to stop?

There are a number of inherently competing principles in the adjudication process.

The timetable is short and judges have recently been telling us that adjudicators should keep control of the timetable and not to allow the process to go on forever. However, at the same time, the rules of natural justice apply. This includes giving each party the opportunity to know the case against it and allowing it to answer that case. Continue reading →

REUTERS | Jumana El Heloueh
February 23, 2010

Ask the team: what is Pool Re and why is it relevant to construction projects?

Pool Re was (and still is) one of the most significant developments in British insurance in the last twenty years, but why is it important to the construction industry?

What is Pool Re?

Pool Reinsurance Company Ltd (Pool Re) is a mutual reinsurance company. It provides reinsurance on a direct basis (that is, without broker intervention) to its members in respect of damage or business interruption caused by “an act of terrorism” to commercial property located in Great Britain. In turn, the Government provides unlimited reinsurance to Pool Re, protecting Pool Re if all its financial resources are exhausted following claim payments. Continue reading →

REUTERS | Jason Lee
February 19, 2010

My claim has failed. Can I sue the expert?

When I teach the RICS training for expert witnesses, the room always goes silent when I ask whether expert witnesses should be sued if they are negligent. I then say that, unlike barristers or solicitors, they are immune from such claims.

Expert immunity may be a thing of the past if the Supreme Court upholds the views expressed by a judge who recently allowed an appeal on this point (see Jones v Kaney below). Continue reading →

REUTERS | Yves Herman
February 19, 2010

A sea change in adjudication enforcement?

Are we witnessing a sea change in the Technology and Construction Court’s (TCC) approach to the enforcement of adjudicators’ decisions? Two recent TCC decisions suggest we may be. In both cases, the TCC took giant steps in developing adjudication enforcement practice. It is no coincidence that both cases were heard by Mr Justice Edwards-Stuart.

The question is, are we ready for such a big change? Continue reading →

REUTERS | John Kolesidis
February 16, 2010

Don’t keep me in suspense

The past 18 months have been tough for the construction industry, with many existing development projects put on hold. You only have to look around any major city to see sites locked up, cranes standing still and part-built properties.

The good news is that things are slowly beginning to move again, with major developers (such as Land Securities) recently announcing that they are to press ahead with construction on several London projects that were put on hold as we went into recession.

Depending on what stage the development was at when it was mothballed, there are various issues to consider, which may make restarting construction much easier. Continue reading →

REUTERS | Petar Kujundzic
February 16, 2010

The adjudicator’s jurisdiction: when “substance and jurisdiction” overlap

I’m not telling you anything new when I say that the adjudicator’s jurisdiction lies at the heart of every adjudication. It is also fairly obvious that if the adjudicator has no jurisdiction to determine the dispute referred to him, ultimately, the parties will waste both their time and money as one party will refuse to pay up and the adjudicator’s decision will not be enforced by a court. Equally well established is the principle that adjudicators cannot make binding decisions about their own jurisdiction.

But how easy is it for the adjudicator to determine whether he has jurisdiction, even on a non-binding basis? Continue reading →

REUTERS | Brian Snyder
February 15, 2010

Stays of execution in adjudication: assessing a change in financial position and a new threshold test

I acted for the claimant in Anrik Limited v AS Leisure Properties Limited (8 January 2010, unreported). We were before Mr Justice Edwards-Stuart in the Technology and Construction Court (TCC).

Two important points arise from this case:

  • What date will the court assess a change in financial position on an application for a stay of execution of a judgment to enforce an adjudicator’s decision?
  • Does the party applying for a stay of execution have to demonstrate an arguable case that the adjudicator’s decision was wrong? Continue reading →

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