Picture this scenario: the construction contract provides that, in the event that the parties cannot agree the identity of the adjudicator, the adjudicator will be nominated by the President or Vice President of a named adjudicator nominating body (ANB).
It seems parties are always trying to think up clever and interesting arguments to resist enforcement of an adjudicator’s decision. Often they rely on alleged breaches of the rules of natural justice, which is an amorphous term for all sorts of alleged wrong-doing. Adjudicators have to be careful, although, even when they are, it seems they still face these allegations with increasing frequency. A case in point is ROK v Celtic. Continue reading
Sara Coleridge, Pretty Lessons in Verse:
“January brings the snow, Makes our feet and fingers glow.”
January is described by Wikipedia as “the coldest month of the year within most of the Northern Hemisphere…”. We are sure no-one would contradict this. Snow and ice, freezing weather and failed transport systems once again dominated the news at the start of the year. No doubt many construction projects “stalled” during those two weeks of chaos, and we published a note to help our subscribers. Continue reading
Sometimes it is tough being an adjudicator or, at least, it appears that way. You only have to read the judgment in Geoffrey Osborne v Atkins Rail to realise that it isn’t always an easy job. On the other hand, when I read the judgment in ROK Building v Celtic Composting (No 2), I had to smile. There was a situation where, as far as I could tell, the adjudicator had acted in an exemplary manner. Continue reading
Question: What do Paul Morrell and Sir John Betjeman have in common?
Answer: They might both like to demolish Slough town centre.
The poet famously said:
“Come friendly bombs and fall on Slough!
It isn’t fit for humans now,
There isn’t grass to graze a cow.
Swarm over, Death!”
Today, most M&E systems contain multiple safety devices, all of which are intended to kick in, in the event of a failure. But, what happens if they all fail at the same time? Is the installer of one of those so called safety devices liable for all the damage caused, or is the chance of all the systems simultaneously failing so remote that the installer should not be liable for the resulting damage?
What happens when a dispute is referred to adjudication and the responding party argues “no dispute” because the only evidence of a dispute – the parties’ correspondence – has been marked without prejudice? Can a dispute crystallise if the only evidence of it is privileged? Continue reading
If you are carrying out works that are partly “construction operations” under the Construction Act 1996, and partly not, conventional wisdom has often said that it makes sense to ensure that your dispute resolution clauses and payment terms comply with the Act.
While this was accepted as good practice, it remained unclear exactly how the court would deal with the enforcement of an adjudicator’s decision relating to works that were not construction operations, but where the parties nevertheless had a clear intention in their contract that adjudication should be available. That is, how might the courts use the Act and the Scheme for Construction Contracts 1998 when enforcing a contractual adjudication. Thanks to HHJ Havelock-Allan QC, we now have at least part of the answer. Continue reading
In 2009, the construction press was full of stories about cover pricing and bid-rigging in the construction industry. This was because of the Office of Fair Trading’s (OFT) investigation (which had started in 2004), and which resulted in fines of £129.5 million being imposed on 103 construction companies in September 2009. Continue reading
It is a well-established principle in adjudication that the adjudicator must act fairly and comply with the rules of natural justice. We are all familiar with adjudicators not having separate communications with the parties; not taking advice from third parties; not advising the parties of a preliminary view (if formed) and so on. Equally well-established is the principle that adjudicators are bound by earlier adjudication decisions. But what happens when these two concepts collide? Continue reading
