All posts by busbyd

REUTERS | Andrew Winning
June 28, 2011

When the adjudicator gets it wrong

I recently read a paper by Edwards-Stuart J, published by the SCL. He called it “When the adjudicator gets it horribly wrong” and discussed what options, such as CPR Part 8, are available to parties when an adjudicator makes a “fundamental mistake”. Edwards-Stuart J cited three examples of adjudicator mistakes:

  • Adopting an incorrect method of calculation.
  • Attributing a sum of money to the wrong party.
  • Leaving something out of the calculations.

I was still pondering his words and the nature of these “fundamental mistakes” when, a few days later, I read Edwards-Stuart J’s judgment in Urang v Century and Eclipse. Among other things, this judgment was concerned with an alleged mistake by the same adjudicator in two separate adjudications. The three parties involved (same referring party (Urang), different responding parties (Century and Eclipse)) had agreed to have matters heard together as the issues were almost identical. Continue reading →

REUTERS |
June 22, 2011

Government Construction Strategy: something new or same old same old?

Last week I went to a presentation at the Centre for Construction Innovation to hear Paul Meigh talk about the Government Construction Strategy. Paul is the deputy director for construction and efficiency reform in the Cabinet Office and introduced himself as the “the officer responsible for publication of the paper”. (The Chief Construction Adviser, Paul Morrell, is the architect behind the paper and Paul indicated that many have contributed to its content including industry, private and public representatives.)

Continue reading →

REUTERS | Adrees Latif
June 21, 2011

Where have all the adjudication enforcement cases gone?

Up until last week (Friday to be exact), it had been almost 60 days since the TCC published one of its adjudication enforcement judgments on BAILII (and I’m excluding the second Lanes Group’s judgment simply because it was published late, came out of sequence and was pretty much covered in the first judgment).

60 days is a long time for someone who writes a weekly column on a topic like adjudication. Continue reading →

REUTERS | Pillar Lee
June 15, 2011

An adjudicator’s skills

How often do you wonder about the skills an adjudicator has and think “I bet those skills are really useful in other spheres of dispute resolving”?

I imagine most people don’t give much thought to my question and I can see why that may be. However, I don’t think it has always been this way. Once upon a time, when statutory adjudication was the new kid on the block, I bet when most people were confronted with their first adjudication dispute, or were wondering whether to name someone as the adjudicator in a contract, they looked at a list of names they were familiar with from their experiences of arbitration or mediation, and wondered whether those same people would be any good at adjudication. In those early days, the adjudicator-nominating bodies (ANBs) had drawn up lists of names, but a large number of those names were unfamiliar to most people. Continue reading →

REUTERS | Toby Melville
June 14, 2011

Economic loss: it’s just common sense

Whenever the law is unable to provide firm guidelines on a given matter, judges seem to fall back on that great legal cop out: it’s a matter of “common sense” or it is “fair and reasonable”. No area do they seem to rely on this more than in the law of tort or, more precisely, when dealing with the question of pure economic loss (when no physical damage or injury has been caused to people or other property).

The Court of Appeal (which included Jackson LJ), had the opportunity to give their thoughts on this issue in Conarken and Farrell v Network Rail Infrastructure. The facts giving rise to the claim, we are told at the beginning of the judgment, are “quite frequent”. So there must be a simple answer? Wrong… Continue reading →

REUTERS | Yuriko Nakao
June 10, 2011

Construction experts’ expertise and its regulation after Jones v Kaney

Much has been written about the anticipated impact that the Supreme Court’s decision in Jones v Kaney will have on expert witnesses and the evidence they give, whether they will need to change their behaviour in court or in the way they write their reports. Going forward, without the protection of expert immunity, it will be important that expert witnesses are aware that they are potentially liable to their clients for a breach of duty, even where the work relates to preparation for or involvement in legal proceedings. Continue reading →

REUTERS | Juan Carlos Ulate
June 7, 2011

Are there reasons to be cheerful in an adjudicator’s decision?

I read an article recently all about who should pay for the reasons in adjudicators’ decisions. Cliff Wakefield, the author, argued that some adjudicators go too far, and write too much, and that their long-windedness costs the parties (usually the losing party) a disproportionate amount of money. He suggested that perhaps it is time that parties started asking adjudicators to limit the number of pages in their decisions. Alternatively, the party asking for reasons should agree to pay for those reasons, regardless of the outcome of the adjudication.

I began to wonder what the point of reasons is? Why do parties want (and expect) reasons, and why is it that the Scheme for Construction Contracts 1998 makes reasons optional (paragraph 22)? Continue reading →

REUTERS | Issei Kato
June 7, 2011

Latent Damage Act 1986: know your limitations

When the Latent Damage Act 1986 was introduced, many thought it was a sensible compromise between the need for a long-stop date and the need to protect those unaware of a latent defect. In essence it gives a claimant three years from the date when he knew or should have known of a problem to issue proceedings. However, it has not quite proved the panacea many had hoped. It was soon held to be confined to claims in tort, which are now relatively unusual in the construction field following the seminal decision of Murphy v Brentwood in 1990.

Continue reading →

REUTERS | Alexander Demianchuk
June 1, 2011

Robinson v Jones: have we heard the last word on builders’ concurrent duties in contract and tort?

In January 2011, the Court of Appeal handed down judgment in Robinson v Jones, which concerned the extent to which a building contractor could be held, in addition to its contractual obligations, to owe a duty of care in tort not to cause pure economic loss.

In delivering the leading judgment, Jackson LJ emphasised that the case amounted to a restatement of principles, set out by the House of Lords in the 1970s and 1980s. However, Robinson v Jones has generated interest because this is an area where there has been a degree of confusion. Even after Robinson v Jones, there still seems to be a fair degree of uncertainty in what is an evolving area of law. Continue reading →

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