Picture this scenario. Your construction contract:

• Pre-dates the legislation changes on 1 October 2011 (in England and Wales).
• States that the applicable adjudication rules are the most recent rules published by, for example, the CIC, TeCSA or CEDR.

My question is, when a dispute is referred to adjudication in 2012, should the adjudicator apply the “most recent” rules, which have been updated to take into account the Construction Act 1996 changes, or is it more appropriate to use the rules that pre-date that change?

I ask this question because that’s a scenario I recently had to contend with. Continue reading →

So often over the last few years I’ve found myself commenting on judgments where the adjudicator has done something wrong, whether that is a breach of the rules of natural justice or some other procedural error that has rendered his decision unenforceable. Therefore, I have rather enjoyed reading two recent judgments where, for a change, it seems the adjudicators (Mr Smith and Mr Mouzer) were right.

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Last week I wrote about the severance points in Working Environments v Greencoat, but I think the withholding notice points that arise from Akenhead J’s judgment are equally interesting.

As I’m sure everyone is familiar with section 111 of the Construction Act 1996 and the requirements of a withholding notice, I’m not going to set them out here. Instead, I’m going to focus on the relationship between withholding notices under section 111 and adjudicators’ decisions. Continue reading →

It may have been a long time coming, but it seems the courts have finally severed an adjudicator’s decision (I’m conveniently ignoring the judgment in Geoffrey Osborne v Atkins Rail, as I don’t think that is quite the same thing).

In Working Environments v Greencoat, Akenhead J had to decide whether the adjudicator had jurisdiction to decide about two items, valued at £21,000 (plus VAT). He decided he didn’t, and so then had to consider whether the remainder of the adjudicator’s decision could still be enforced (that part was valued at £230,000 plus VAT). Akenhead J held that there was no reason why the substance of the adjudicator’s decision should not be enforced, and so he gave judgment in WE’s favour. He severed the two items valued at £21,000. Continue reading →

It is probably fair to say that adjudication favours the referring party. After all, the referring party can spend as much (or as little) time as it wants preparing its claim, collating evidence, proofing witnesses and getting its expert evidence in place. On the other hand, the responding party is up against the clock from the moment it receives the notice of adjudication. I’d say there is a world of difference between knowing a claim may result in a notice of adjudication, and actually having to respond to one when it lands on your desk. Anyone having experienced this will know just how quickly the clock hands go around, once it starts ticking.

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