Clause 60(10) of the Infrastructure Conditions of Contract (ICC Conditions) retains withholding notice provisions despite the Construction Act 1996 (as amended) replacing withholding notices with pay less notices. Does this mean that the contract fails to comply with new statutory regime? Continue reading
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
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.
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
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.
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
I was up early the other day for a visit to the new Rolls Building and to participate in a promotional film. I was an extra in a production that will not, I suspect, be nominated for an Oscar but is intended to promote the Technology and Construction Court (TCC), particularly internationally.
Sometimes I’m glad that I don’t have many years’ experience in civil engineering like Dr Robert Hunter in Carillion v SP Power or Mr George Ross in SGL Carbon Fibres Ltd v RBG Ltd. If I did, it may just make being an adjudicator all the more difficult since I may find it harder to draw the line between using the parties’ materials and submissions to determine an issue, and drawing on my own knowledge and experience, either to fill gaps in the evidence or when I don’t like what is before me.
William Shakespeare, Richard II:
“His rash fierce blaze of riot cannot last, for violent fires soon burn out themselves.”
August saw some of the worst civil commotion in decades, with riots in a number of English cities. Once the violence and looting was over, the clean-up began. The impact goes much wider than just the construction and engineering industry, and the government announced a number of measures to ease the pain. The ABI also issued guidance to its members. Continue reading
A few weeks ago I read about a talk by Lord Hamilton, the president of the Scottish Court of Session, on adjudicator’s acting judicially and something called the Statement of Principles of Judicial Ethics for the Scottish Judiciary (see Tony Bingham, Building, 1 July 2011). Tony made the talk sound interesting so I googled it and took a look for myself. It is an interesting paper and well worth a read, if you have the time. Although it refers primarily to adjudication in Scotland, there is no reason why the principles advanced by Lord Hamilton cannot apply equally south of the border. In fact, a new English judiciary guide has recently been published.
