Monthly Archives: November 2021

REUTERS | Reuters
November 24, 2021

Enforcement of adjudicator’s decision refused as proceedings were an abuse of process

We often hear cases referred to as having turned on their facts and, if there was ever an example of this it would be the judgment handed down in October 2021 in G&D Brickwork Contractors Ltd v Marbank Construction Ltd. The parties’ names will ring a bell with some of you because, earlier in the year, O’Farrell J refused to grant an injunction restraining G&D from bringing adjudication proceedings, and last month’s judgment from Joanna Smith J deals with the enforcement of the adjudicator’s decision.

I’m partial to the occasional flutter, and I would bet my hat that the facts of this case are so unique that it’s unlikely to be referred to a great deal in the future, let alone be one of the great adjudication reference cases such as Carillion v Davenport. However, don’t let that put you off reading what remains of this blog, as the case nevertheless sets out some of the relevant law where parties litigate prior to adjudicating (I did say the facts were unique…). Continue reading →

REUTERS | Alkis Konstantinidis
November 16, 2021

Good faith, NEC clauses 10.1 (and 10.2) and aspirations

Here we go again. Good faith is a concept that some lawyers do not like but industry people don’t seem to have a problem with, which is highlighted by the widespread use of the NEC form of contract. I first blogged on good faith and NEC3 in 2014, looking at what clause 10.1 is for and again in 2015, looking at some other NEC3 cases and clause 10.1 and what was then the newly emerging concept of relational contracts.

I said watch this space and, if you did, you may have noticed the great excitement that followed a few years later in 2019 with the decision in Bates v Post Office Ltd (No.3). Commenting on this case, Richard Benn and Rachel Dale told parties choosing to use express good faith obligations that they would be expected to conduct themselves in a manner likely to be regarded as “commercially acceptable”.

This was good advice then and remains good advice now, as highlighted by the Inner House decision in Van Oord Ltd v Dragados Ltd where, as in other earlier cases, the court tried to explain the practical effect of NEC3 clause 10.1 (10.2 in NEC4). Continue reading →

REUTERS | Guglielmo Mangiapane
November 10, 2021

Scottish court reminds us that you must adjudicate first under NEC3

Back in February 2021, I wrote a blog entitled, You must adjudicate before you can arbitrate, where I discussed Lady Wolffe’s judgment in Fraserburgh Harbour Commissioners v McLaughlin & Harvey Ltd. At the time, I said that if parties have a tiered dispute resolution clause in their contract, one thing they shouldn’t do is jump in at the deep end, missing out a step or two on the way, because we know the judges don’t like this (as was proved by Lady Wolffe’s dismissal of the court proceedings in that case).

It seems events have moved on a bit, as not only has there been an appeal in the Fraserburgh dispute (which I’ll come to), but we have another example of parties not complying with the NEC3 dispute resolution clause before the Scottish courts. I have Len Bunton to thank for flagging this week’s case to me, Greater Glasgow Health Board v Multiplex Construction Europe Ltd and others. I had been wondering what to write about … Continue reading →

REUTERS | Darren Staples
November 3, 2021

Third time’s a charm: can a single dispute include multiple sub-issues in adjudication?

“Quick and dirty” is not a phrase that we usually associate with dispute resolution. However, as many construction practitioners will know, adjudication provides an exception.

Speed has its benefits but it rarely makes things simple. As our colleague, Ravinder, explained in her blog, adjudication is not always a straightforward process. Many disputes involve multiple, complex issues. This creates fertile ground for challenge, and adjudicators find themselves engaged with jurisdictional arguments more often than not.

One such argument is whether the issues referred to adjudication comprise one or multiple disputes. Our blog focuses on the courts’ approach to this question in the recent case of Quadro Services Ltd v Creagh Concrete Products Ltd. Continue reading →

REUTERS | Sigtryggur Johannsson
November 2, 2021

Adjudication: playing the best game in town

Of the 25 years since the introduction of adjudication, 20 have followed the Court of Appeal drawing attention to the tension between adjudication and insolvency in Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd.

The most recent major decision dealing with insolvency and adjudication is John Doyle Contractors Ltd v Erith Contractors Ltd. In their blog post, Edward Shaw and Hadley Dickson provided a summary of the Court of Appeal’s decision and considered its potential implications, in particular for liquidators and funders deciding whether to adjudicate certain claims.

Mark has previously written about how insolvency-adjudication cases have shown the continued significance of the rules of maintenance and champerty, and the effect of common third party funding driving forward the Bresco, Meadowside and Astec series of cases. In this blog post, we will be looking at the conspicuous success of adjudication as a process, which was lauded by the Supreme Court in Bresco and the Court of Appeal in John Doyle (among others), and how this might be expanded into dispute resolution more generally. Continue reading →

REUTERS | Peter Cziborra
November 1, 2021

“O, where is loyalty?” The duties of experts and conflicts of interest

In modern litigation, experts often simultaneously perform a number of different and apparently contradictory functions: they may receive confidential information from their client that they are not at liberty to disclose; they may prepare draft reports that will usually be privileged in the hands of their client, and may see other privileged documents during the production of such drafts; yet their overriding duty is to the court and they are required by CPR 35.3 to sign a statement to that effect in their report.

How are experts and the parties who appoint them to reconcile these contradictory functions? When will conflicts of interest arise and how can they be avoided? The courts have recently shed some light on these questions. Continue reading →

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