Monthly Archives: September 2011

REUTERS | Ilya Naymushin
September 28, 2011

September 2011 digest: D-day for Construction Act changes and costs pilot

TS Eliot, Little Gidding:

“What we call the beginning is often the end, and to make an end is to make a beginning. The end is where we all start from.”

We are on the home straight when it comes to the Construction Act 1996 changes coming into force. As 1 October fast approaches, we hope that we have done all that is necessary to prepare you. Don’t forget that you can still watch our webinar with Lynne McCafferty and John Hughes D’Aeth, or you can use our help and information note to guide you to the many materials that we have written on the new payment, adjudication and suspension rules. In a spot of crystal ball gazing, Paul Flook, Jennie Gillies and Lynne look at what may happen to adjudication. Continue reading →

REUTERS | Ronen Zvulun
September 28, 2011

Going fishing: can you use pre-action disclosure in adjudication?

Akenhead J’s judgment in PHD Modular Access Services Ltd v Seele GmbH provides a useful analysis of when a party can apply for pre-action disclosure under CPR Part 31.16 and the breadth of the order sought by the applicant, particularly where there are ongoing adjudication proceedings.

It is a common consideration where disputes arise between parties in the construction industry. One may seek useful documents from the other prior to any formal proceedings. The practice is often described (though sometimes unfairly) as “fishing”. The party may be looking to see if it can get a “nibble” when it dangles its metaphorical hook to gather more evidence for a claim. Continue reading →

REUTERS | Alexander Demianchuk
September 27, 2011

Writing the adjudicator’s decision

The Scheme for Construction Contracts 1998 does not include any guidance for the adjudicator on how he should set out his decision, albeit it sets out lots of detail about his jurisdiction and the things he can do in the conduct of the adjudication.

The form of the decision is left very much to the individual, based on the nature of the issues in the dispute that the adjudicator is considering. For instance, some disputes may lend themselves to the parties and the adjudicator using a Scott Schedule to deal with many of the financial aspects, others may not. Even if the adjudicator uses a Scott Schedule, the summary information needs to be included in the body of the decision. Continue reading →

REUTERS | John Kolesidis
September 26, 2011

Dealing with the practicalities of the amendments to the Construction Act 1996

It would be foolish to attempt to make predictions regarding the way in which case law might develop after 1 October 2011, save to say that a number of fertile battle grounds are sure to emerge as a result of the repeal of section 107 of the Construction Act 1996. Before battle lines are drawn, however, there are some obvious areas that parties (and their legal advisers) would be well advised to spend a moment considering.

Continue reading →

REUTERS | Aly Song
September 20, 2011

The meaning of “dispute”

The meaning of “dispute” in section 108 of the Construction Act 1996 is not something that often comes before the courts. After all, everyone knows that if a party refers more than one dispute to adjudication, the adjudicator will not have jurisdiction (unless the parties have agreed otherwise).

However, when the issue does arise, it is usually left to the court to interpret the situation on an enforcement application. That is precisely what Akenhead J did in Witney Town Council v Beam Construction recently. Continue reading →

REUTERS | Lisi Niesner
September 15, 2011

What is the effect of extending the adjudication regime to oral contracts?

Part 8 of the LDEDC Act 2009 comes into force next month. One of the most radical changes it makes to Part II of the Construction Act 1996 is the repeal of the requirement (in section 107) that the construction contract be made in writing. From 1 October 2011, construction contracts need no longer be in writing in order to benefit from the statutory right to adjudicate and the new payment regime.

Continue reading →

REUTERS | Lisi Niesner
September 13, 2011

Are contractors required to give pay less notices under the LDEDC Act 2009 and the revised Scheme?

There I was, quietly drafting some LDEDC Act 2009-compliant payment terms when, hitting a patch of writer’s block, I turned to my trusty PLC mark-up of the revised English Scheme. All of a sudden it dawned on me that either I had fundamentally mis-read the LDEDC Act 2009 or the revised English Scheme was not Act-compliant.

Continue reading →

REUTERS | Kim Hong-Ji
September 13, 2011

Acting as an expert determiner

Expert determination is a funny old process. I occasionally get involved, doing something with my time other than adjudicating (or training for triathlons). It’s the same with arbitration or mediation.

In some ways, expert determination has many parallels with adjudication: it’s quick, there are limited submissions and the parties rights are determined. However, the overriding difference is the fact that the “expert” is being asked to provide an opinion on a technical matter and that typically results in a binding decision (as we all know, adjudication is only temporarily binding). Continue reading →

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