A couple of weeks ago I went to Edinburgh to give a talk to the Society of Construction Law on global claims in the wake of Walter Lilly v Mackay. However, both before and after the talk, a number of the Scottish delegates were more interested in talking about their very own Mackay case, White and Mackay v Blyth & Blyth, as Lord Malcolm’s latest judgment had been published the day before.

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Adjudication enforcement decisions often throw up interesting discussion points and two judgments from last week are no exception. The first concerned Lord Malcolm’s decision in Whyte and Mackay v Blyth & Blyth, where the court considered the adjudicator had breached the rules of natural justice as there was a “very significant omission” in his decision and reasoning. While that of itself would make a good blog topic (and is something Jonathan will be looking at), it was the application of Article 1 of the First Protocol of the European Convention on Human Rights (ECHR) that is more likely to attract commentators north and south of the border. In fact, Alastair Walls has written about it today.

The second judgment, Ramsey J’s decision in Willmott Dixon v Newlon Housing Trust, is the one I’m interested in. Continue reading →

This issue came up over lunch recently. It got me thinking about whether I would like to see my decisions made public or whether I prefer the current position whereby they remain private between the parties and only get an airing in public if there is an issue on enforcement. Even then, the decision is not put into the public domain, rather bits and pieces are shared by the judge in the judgment, along with the adjudicator’s main findings.

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One of the reasons that adjudication is so popular is the speed in which a temporarily binding decision can be obtained. However, as a result the parties can be under immense pressure to produce submissions within very limited timescales. In particular, the responding party may only have seven days to prepare a response. When you take into account the other commitments of its employees and party representatives, this might be a tall order. Similar problems can arise with the reply, particularly when new defences are raised in the response.

However, one of the consequences of these compressed timescales is that submissions tend to be longer than necessary. Consequently, an alternative title to this post might be “Why say it in ten words when 100 will do?”. Continue reading →

Over the last few months both Jonathan and I have written about various aspects of expert evidence, whether that is on the difficulties an expert may face, educating experts or what an appraiser is. However, another area of expert evidence that seems to get little coverage is what an adjudicator should do, if they suspect one of the experts involved in the dispute has breached his professional duties in some way.

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