Monthly Archives: November 2014

REUTERS | Ali Jarekji
November 28, 2014

November 2014 digest: autumn, ANBs in adjudication and “plebgate”

John Clare, Remembrances:

“Summer’s pleasures they are gone like to visions everyone, and the cloudy days of autumn and of winter cometh on.

I tried to call them back but unbidden they are gone, far away from heart and eye and forever far away.”

The weather is always close to our hearts and no more so than at this time of year, with the falling leaves and endless grey skies. Like last year,  November 2014 has been mild and wet, with overnight frosts just starting to feature in the forecasts. Surely it is only a matter of time before we get some snow but, before that winter storm arrives, we’ve been witnessing a storm in the adjudication world.

It isn’t often that an adjudication enforcement case comes along and gets everyone excited. However, that is precisely what Ramsey J’s judgment in Eurocom v Siemens has done. Continue reading →

REUTERS | Kim Hong-Ji
November 26, 2014

TCC considers “same or substantially the same” in paragraph 9(2) of the Scheme

In Harding v Paice, Edwards-Stuart J has considered the meaning of paragraph 9(2) in Part 1 of the Scheme for Construction Contracts 1998.

Paragraph 9(2) provides that:

“An adjudicator must resign when the dispute is the same or substantially the same as the one which has previously been referred to adjudication and a decision has been taken in that adjudication.”

Whether dispute A is the same as dispute B is a question of fact and degree (Dyson LJ in Quietfield v Vascroft Contractors Ltd). In applying this test it is necessary to consider the terms, scope and extent of the dispute referred and the first adjudicator’s decision, and to ask whether the one dispute is the same or substantially the same as the other. Continue reading →

REUTERS | John Javellana
November 26, 2014

Adjustment of liquidated damages: freedom to contract v unfair windfall

In this first of a three-part blog series we consider some key contractual issues in the context of the Qatari and UAE construction market. We begin with an overview of liquidated damages (LDs) provisions for project delays.

We all know that an employer’s entitlement to liquidated damages has a significant impact on contractors and the supply chain. If the contractor misses a contract milestone, most contracts in Qatar and the UAE allow employers to levy liquidated damages. Continue reading →

REUTERS | Russell Boyce
November 25, 2014

When is a response not a response in adjudication proceedings?

I’m not telling you anything new when I say that it’s a funny thing, adjudication. We have a statutory process for resolving disputes in the construction industry set out in section 108 of the Construction Act and Part 1 of the Scheme for Construction Contracts 1998. Both the Act and the Scheme provide for when the referring party will put in its evidence (within seven days of the notice of adjudication, which the Scheme calls a “referral notice“, the Act doesn’t even go that far) but neither contain an express provision for the responding party to do the same.

Without looking back to the Parliamentary discussions on the Act and the Scheme, I’m not sure exactly why we ended up with this state of affairs, or whether it has really ever prevented the process from operating properly. It only really came to mind the other day, when I was looking at Akenhead J’s judgment in A T Stannard v J and T Tobutt. Continue reading →

REUTERS | Ina Fassbender
November 24, 2014

Eurocom v Siemens: multiple bites of the cherry?

In this blog, I focus on “re-adjudication” of a dispute. In summary, Eurocom Ltd v Siemens plc confirmed that once a claim had been adjudicated, it could not be re-adjudicated, regardless of how the referring party wanted to repackage or re-label the same claim. Others have commented on nominating an adjudicator, so I’d like to start with some brief thoughts on that aspect. Continue reading →

REUTERS | Sukree Sukplang
November 21, 2014

Parties in the TCC: prepare for trial and to settle

Often parties engaged in proceedings want to park those proceedings while they turn their attention to alternative dispute resolution (ADR).

In some types of dispute, judges favour a stay for ADR. Indeed in any boundary, right of way or other neighbour dispute (as I discussed last month in relation to Norris J’s decision in Bradley v Heslin), whatever the parties might say about their willingness to engage in the process, they should expect a court-ordered two-month stay for mediation and a direction that all reasonable steps to conduct that mediation must be taken.

No stay or window for ADR in the TCC

However, in CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd,  Coulson J said that in the TCC ordinarily there would be no stay for ADR ordered or pause in the proceedings for ADR created by the fixing of a window in the timetable. Instead, parties in the TCC must do both: work towards a fixed trial date and attempt to settle the litigation. Continue reading →

REUTERS | David Bebber
November 18, 2014

Nominating adjudicators in the wake of Eurocom v Siemens

If you Google my name (so I am told as I obviously wouldn’t do that myself…), I’m nowhere to be seen. The first hit you get is the former lead male in the Royal Ballet (the name is where the similarities end) and an English General who took a pounding from the Scots in 1745. Similarly, if you Google Matt’s name you are normally directed to an Irish musician or a pub in Westport, rather than an experienced dispute resolver. However, after the publication of Ramsey J’s judgment in the adjudication enforcement case of Eurocom v Siemens, I suspect Matt might be climbing the Google list, partly because his name is mentioned 19 times (despite not being the adjudicator in the case), but also because the case seems to be causing quite a stir. Continue reading →

REUTERS | Neil Hall
November 12, 2014

Eurocom v Siemens: a “strong prima facie” case of fraudulent misrepresentation

In adjudication, the identity of the adjudicator can be of critical importance. Not only do adjudicators decide the referred dispute, they also deal with questions of jurisdiction, and manage the fairness of the process. Some experienced users of adjudication develop favourites or those they would rather avoid.

Not surprisingly, referring parties have sought to influence the appointment of the adjudicator by the nominating body (ANB). The courts have generally taken a permissive view of this. For example:

  • In Makers UK Ltd v Camden, it was held that there was no implied term preventing a referring party from making unilateral representations to the ANB as to who should act as the adjudicator. Akenhead J noted that this practice was “at least not uncommon” and held that ANBs may want to consider whether they welcome such representations, and whether notice of such representations should be given to the other side.
  • In Lanes Group plc v Galliford Try Infrastructure Ltd, the Court of Appeal held that a referring party who gets an adjudicator it does not want can allow the referral to lapse. At first instance, Akenhead J referred to the “relatively minor” constraints on such a practice, such as the extra costs and the nomination fee.

Continue reading →

REUTERS | Christian Charisius
November 11, 2014

Scottish Inner House confirms the right to adjudicate at any time

For those of you that practise solely in England, the Inner House of the Court of Session is the Scottish equivalent of the English Court of Appeal. As we seldom see decisions related to adjudication from either court, it is therefore worthwhile taking a look at Lord Bracadale’s judgment in T Clarke v MMaxx Underfloor Heating, if only for the support the court gives to the adjudication process. Continue reading →

REUTERS | Steve Crisp
November 5, 2014

“Converting” DIFC Court judgments into arbitral awards

The Dubai International Financial Centre (DIFC) Courts recently consulted on an innovative proposal to allow for the “conversion” of DIFC Court judgments into arbitral awards.

The English-speaking DIFC Courts have gained considerable traction in the UAE in recent years. Since 2011, contracting parties can opt-in to its jurisdiction even if they are not based in the DIFC and the dispute is not DIFC-related. The quality and consistency of the DIFC Court judgments are widely considered to be excellent and so DIFC Court dispute resolution clauses are becoming increasingly commonplace. Continue reading →

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