My last post was all about unconscious bias, derived from an alleged relationship between the arbitrator and party representatives. It got me thinking about other types of bias that may be alleged, especially in adjudication where you have a modest number of companies adjudicating, with an even smaller number of party representatives and adjudicators.
Lewis Carroll, Through the Looking Glass:
“I mean, what is an un-birthday present?
A present given when it isn’t your birthday, of course.
Alice considered a little. ‘I like birthday presents best’, she said at last.”
Amazingly, this month saw PLC Construction turn three. Back in 2008 when we launched, the industry was in the midst of a consultation over the Construction Act 1996 changes. Now, three years later, it finally feels like the calm after a storm. The effective date of the Construction Act 1996 changes has come and gone, the publishers of the major standard form contracts have issued their amendment sheets (NEC, RIBA, IChemE, PPC2000 and ICC) or new contracts (JCT) and we have reviewed and updated all of our maintained resources to ensure they are “ship shape and Bristol fashion”.
Time to turn our attention to other things… and as we do, please let us know if there are any documents or clauses that you would like us to publish. You can email us at constructionfeedback@practicallaw.com. Continue reading
Last week I considered some of the issues that might arise from the prohibition on pay-when-certified provisions and the new payment and default payment notices. This week, in the second part of the Adjudication Society panel debate, I consider pay less notices and suspension.
By now, most construction practitioners will be aware that Part II of the Construction Act 1996 has been amended by Part 8 of the LDEDC Act 2009. Among the many changes, this has introduced the pay less notice (in place of the withholding notice).
Therefore, the two key notices under the Construction Act 1996 (as amended) are:
Under the Construction Act 1996 (as enacted), a paying party could combine a payment notice and a withholding notice. The question is, can a paying party still combine those two notices under the amended Act? Continue reading
In my last blog I talked about the repeal of section 107 of the Construction Act 1996 (which came into force on 1 October 2011). However, while the repeal of this section and the other amendments to the adjudication provisions are interesting, in my view, it is the changes to the payment provisions that will have a more significant impact on the industry:
One of my clients recently reorganised into a number of trading companies plus a holding company. They did not novate any existing contracts but wanted new contracts to be entered into by the appropriate trading company. The trading companies were brand new and therefore had no credit history. Some of the customers (and sub-contractors) were a bit “anxious” and asked for a parent company guarantee (PCG) from the holding company.
I have written about bias on several occasions, including to discuss Edwards-Stuart J’s judgment in Fileturn v Royal Garden Hotel last summer. On that occasion, the issue before the court was whether there was bias because of an alleged pre-existing relationship between the adjudicator and Fileturn’s representative in the adjudication. At the time, I wrote that I was pleased the court rejected the argument, noting that the world of construction adjudication is a small one. I don’t want to think about the implications if it had gone another way.
I was equally pleased to see Flaux J in the Commercial Court adopt a similar common sense approach to the question of unconsicous bias in A v B. Continue reading
Although the High Court may not yet be the domain of hashtags and the twitterati, two important reports have been published that allow us to see what is “trending” in the world of litigation:
We have also researched new claims started in the TCC in 2011 to see what this year’s activity tells us about the state of the construction industry and the extent to which it is involved in litigation. Continue reading
Remember March 2004? Very few of us had a Blackberry, Katie Price and Peter Andre had recently met in the jungle, and Tony Blair was still Prime Minister. It was also the month that Gordon Brown, then Chancellor of the Exchequer, announced a review of the Construction Act 1996. Well, after seven years and what seems like endless consultation, the amendments to the Construction Act 1996 finally came into force in England and Wales on Saturday (1 October 2011). They have another month to wait north of the border.
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
