Practical Law

All good things come to an end, and sadly this will be our last blog for Practical Law Construction. However, fear not as we will continue to write some articles for them in the future, and we hope to relaunch the blog on a separate platform later this year. We’re afraid you can’t get rid … Continue reading “It’s goodnight from me, and it’s goodnight from him…” →

In the early ’80’s, Soft Cell sang Say hello, wave goodbye. It probably isn’t as well known as the dance floor-filler that is Tainted love, but it is a song that came to mind when I read the Court of Appeal’s judgment in A & V Building Solutions Ltd v J & B Hopkins Ltd. If you are wondering … Continue reading Waive goodbye to your payment application challenge →

Some years ago I wrote a number of blogs about the long-running legal battle between Gary Paice and Kim Springall (property developers) and MJ Harding (the building contractor). That really was the case that kept on giving, and I’m not sure we’ve had two parties provide such rich blog pickings since. However, I think there … Continue reading Sudlows v Global Switch part deux: a significant judgment or one that turns on its facts? →

Earlier this year I acted as adjudicator in four related adjudications that ran simultaneously, and I thought it would be worthwhile sharing my experience as I think there are some interesting points for parties and their representatives who might be considering using adjudication for multiparty disputes. Before any of you shout “confidentiality!”, to be absolutely … Continue reading The suitability of adjudication for multiparty disputes →

Last week I had the pleasure of travelling to one of my favourite cities, Edinburgh, to help launch the report, 2022 Construction Adjudication in the United Kingdom: Tracing trends and guiding reform at the Adjudication Society’s annual conference. The report has been published by King’s College London (KCL) and the Adjudication Society, and is the product of … Continue reading Kings College survey report gives adjudication a (mainly) clean bill of health →

This week I’m looking at a case from the Chancery Division of all places, Instrument Product Development Ltd v WD Engineering Solutions Ltd. Why, I hear you ask? Well, it caught my eye because the judgment starts by talking about a noted 1981 study, Role of schemeta in memory for places (was it just me … Continue reading Would I lie to you? →

I appreciate that some of you might be reading this blog on your summer holidays, so you may well have far better things to be doing with your time (ordering another piña colada perhaps?). I will therefore keep the blog short – what might be termed a “blogette”. As one would expect over the summer … Continue reading TCC provides reminder of the meaning of paragraph 9(2) of the Scheme →

I was lucky enough to be asked to give a recent case law update lecture for the Adjudication Society. At the end one of the delegates asked a very sensible question, namely to what extent do matters decided by an adjudicator concerning an interim valuation bind later valuations. It’s an issue that I’ve been asked … Continue reading How far does an interim valuation adjudication bind determination of the final account? →

While I may sound like a turkey voting for Christmas, I acknowledge that sometimes (and only sometimes), it makes sense for parties to go straight to the TCC rather than adjudicating. In particular, where a dispute turns on the validity of a notice and there is little disputed witness evidence, then the parties may well … Continue reading TCC dismisses Part 8 claim concerning validity of pay less notice →

After many months of wrangling, both in the House of Commons and the House of Lords, the Building Safety Bill finally received Royal Assent at the end of last month. Now known as the Building Safety Act 2022 (BSA 2022), the new building safety regime that is being introduced is going to have a significant impact on many … Continue reading What are the new rights of recourse under the Building Safety Act? →

The keen-eyed among you will note that this is the third post in a row where I have talked about adjudication enforcement cases in which natural justice issues have arisen either directly or indirectly. I promise that I haven’t got some strange fetish for such matters. Nor do I think that such challenges are necessarily … Continue reading Court refuses to enforce adjudicator’s decision due to a breach of natural justice →

I acknowledge that the Ukraine crisis is at the forefront of our minds at the moment and I confess it feels somewhat strange to be writing a blog about a construction dispute, which pales into insignificance in comparison. However, I appreciate that you will have clicked on this blog to read about a TCC adjudication … Continue reading TCC’s useful reminder of limits of natural justice challenges to adjudicators’ decisions →

Compared to the restrictions we faced a couple of months ago with the emergence of the Omicron variant of COVID-19, it really does feel as if we are starting to return to some normality, and it was wonderful to see so many construction law professionals at the Society of Construction Law lunch in London last … Continue reading TCC finds adjudicator did not undermine arbitration award →

I appreciate that not everyone will agree but, as well as striving to get to the right answer, correctly applying the law, and so on, most adjudicators also want to provide the parties with a decision that is ultimately enforceable by the TCC. I think I also speak for most adjudicators when I say that … Continue reading TCC severs adjudicator’s decision →

I’m acutely aware that this blog is being published when many of you will have already broken-up for the Christmas holidays, and quite possibly the last thing you want to be doing is reading work-related content when you could be sipping Bailey’s and watching your favourite Christmas movie (I’ll throw Die Hard, Home Alone and … Continue reading England and Scotland at one when it comes to the conclusivity of final certificates →

We often hear cases referred to as having turned on their facts and, if there was ever an example of this it would be the judgment handed down in October 2021 in G&D Brickwork Contractors Ltd v Marbank Construction Ltd. The parties’ names will ring a bell with some of you because, earlier in the … Continue reading Enforcement of adjudicator’s decision refused as proceedings were an abuse of process →

I’ve just been looking back over our past blogs and neither Matt nor I have written about an English adjudication enforcement case since May. That’s in part been because there weren’t many reported adjudication enforcement judgment on BAILII over the summer, but that changed in September with publication of judgments in Downs Road Development LLP … Continue reading TCC makes interesting findings relevant to Final Statement dispute →

What, I hear you ask, am I doing writing about football? Well, despite the title of this blog, it’s actually about an arbitration and subsequent court proceedings that just happen to involve a football club. I think it’s interesting for a number of reasons, not least because it applies the Supreme Court’s findings in Halliburton Company … Continue reading Arbitrators escape the red card in Manchester City case →

Or should that be, when is a collateral warranty not a construction contract? July was a busy month for TCC judgments, which makes the job of writing these blogs considerably easier. In addition to the fascinating judicial review cases being brought by the Good Law Project, one case that caught my eye was Timberbrook Ltd … Continue reading When is a collateral warranty a “construction contract”? →

It has been quite some time since I have blogged about expert determination. In fact, the last time was six years ago when I wrote about the Court of Appeal’s judgment in Begum v Hossain, which concerned the valuation of shares in an Indian restaurant. That was before the term “Brexit” had been coined and … Continue reading TCC stays expert determination proceedings →

As someone that deals mainly with construction and engineering disputes, it is sometimes easy to forget that the “T” in TCC stands for Technology. In my defence, I would hazard a guess that at least three-quarters of judgments from the TCC are associated with the “C” (Construction), but the lack of technology cases means that … Continue reading Experts – time to go back to the drawing board? →

It strikes me that there are a number of factual scenarios that commonly lead to jurisdictional challenges when disputes come to adjudication. One example is where the contract concerns a residential occupier. There will often be jurisdictional challenges even if the contract in question expressly provides for adjudication, as we can see from the mountain … Continue reading The perils of multiple agreements on the same project →

I recently learned that the Technology and Construction Court (or, more precisely, the Official Referees’ Court as it was known until 1998) will soon celebrate its 150th birthday, having started life in 1873. No birthday would be complete without a birthday list of long-desired gifts but, as a public body staffed by public servants, there … Continue reading My TCC birthday list →

Any adjudicator will tell you that dealing with jurisdictional challenges can be one of the most demanding parts of the job. Such challenges must be dealt with at speed because the parties need to know whether the reference will be proceeding, and the adjudicator’s non-binding conclusion can have far reaching consequences. For example, reaching a … Continue reading Reminder of applicable principles when substance and jurisdiction collide in adjudication →

Earlier this month, Scotland beat England in the Six Nations at Twickenham for the first time in 38 years. When it last happened (in 1983), Michael Jackson’s Billie Jean was number one and Octopussy was the latest James Bond movie (which we all know is not in my top five movies of the 1980’s). I … Continue reading Parties beware: ensure your jurisdictional challenge is clear and appropriate to avoid waiver →

Happy New Year to you all. Although we are only in January, the beginning of December seems a long time ago, not least because much of the country was still in Tier 2 at the time. Restaurants and bars remained open and 1,000 lucky spectators attended Anthony Joshua’s latest defence of his heavyweight belts at … Continue reading TCC refuses to enforce adjudicator’s decision due to material natural justice breach →

After over a year of waiting, the Supreme Court finally handed-down judgment in Halliburton Company v Chubb Bermuda Insurance Ltd on 27 November 2020. I wrote about the Court of Appeal’s judgment back in May 2018, and had forgotten that we were still awaiting the Supreme Court’s judgment until I saw various excited posts on LinkedIn. … Continue reading Does the Supreme Court’s judgment in Halliburton v Chubb have any implications for adjudication? →

The past couple of months have been somewhat lean for TCC judgments on adjudication and arbitration matters, so when our (brilliant!) editor at Thomson Reuters asked me what I wanted to write about this week the answer was not immediately obvious to me. There’s certainly been a lot on the news over the past week … Continue reading Coulson LJ’s seven golden rules for adjudicators revisited →

I appreciate that the title of this blog may have put some people off, partly because they’ve had enough of reading about this frankly horrible pandemic, and partly because much ink has already been spilled on the issues arising from the resolution of disputes during it (including by Matt in earlier blogs). However, for those … Continue reading A few lessons I have learned from resolving disputes during the pandemic →

I’m pleased to say that I am too young to remember The Doors in their heyday, but I loved the biographical film that was released when I was a teenager. What, you may well ask, have The Doors got to do with jurisdictional reservations? Well, when I read the recent adjudication enforcement judgment in Lane … Continue reading Jurisdictional reservations revisited →

Summer felt like it had come early in May, but much of June and July served to remind us that we don’t live in the Mediterranean. Although summer has now most certainly arrived, the judges in the TCC are still hard at it. A recent judgment that caught my eye was O’Farrell J’s in Kew … Continue reading TCC refuses to strike out claim where smash and grab decision not paid →

Much has been written already about the Supreme Court’s judgment in Bresco Electrical Services v Michael J Lonsdale but, before you stop reading this blog because you’ve already read umpteen updates about the case, I want to assure you that I’m not going to talk about the insolvency issue. I’m not even going to summarise the … Continue reading Broad meaning given to “dispute arising under the contract” in adjudication →

The TCC is continuing to pump out a large number of judgments despite hearings being conducted remotely due to the COVID-19 pandemic and, in May, no less than 13 judgments were published on BAILII.  By my reckoning you have to go back to October 2015 for such a number of judgments in one month. Perhaps … Continue reading TCC dismisses “no dispute” jurisdictional challenge to adjudicator’s decision →

I very much welcome the fact that the TCC has clearly been open for business as usual during the COVID-19 lockdown, and that we’ve seen a number of interesting judgments published, one of which is Flexidig Ltd v M&M Contractors (Europe) Ltd. This was a case about the enforcement of an adjudicator’s decision (as so many … Continue reading TCC decides adjudicator did not stray off course →

A couple of weeks ago when Matt was writing about the difficulties parties face in adjudicating because of the 2019 novel coronavirus disease (COVID-19), we were just starting week two of the coronavirus lockdown, and still getting used to working from home every day. Two weeks later, I’m sure we are all a bit more in the swing of … Continue reading Fraud allegations in adjudication enforcement prevent summary judgment →

I always enjoy reading Coulson LJ’s judgments as he explains things so clearly. Therefore, you’ll not be surprised to see that this week I’m looking at his judgment in C Spencer Ltd v MW High Tech Projects UK Ltd, where he upheld Farrell J’s October 2019 judgment. To be fair, I like her judgments too (although … Continue reading Court of Appeal upholds TCC on hybrid contract issue →

At the moment, we seem to have more Scottish than English adjudication enforcement judgments to talk about. I’m not entirely sure why that is, although I’ve heard the TCC is re-directing some adjudication enforcements to the County Court in the Central London Centre. That may be better for the parties if they get an earlier … Continue reading Can parties to adjudication in Scotland raise any legitimate defence to a money claim? →

First things first, Happy New Year to you all. The case I want to talk to you about this week is ISG Construction Ltd v English Architectural Glazing Ltd, which was handed-down by HHJ Stephen Davies in December 2019. Those of you already aware of the case will know that it concerns ISG’s Part 8 … Continue reading When is an adjudicator prevented from opening-up, revising and reviewing? →

Last week I headed to Dublin to attend the SCL’s annual lunch where Marion Smith QC was speaking. Just by coincidence, on my flight over there, I was reading the latest International Arbitration Survey: Driving Efficiency in International Construction Disputes, produced by the School of International Arbitration at Queen Mary, University of London (QMUL) (where Marion … Continue reading Can international construction arbitration adapt to be more affordable for lower value disputes? →

In my last post, when I considered the exclusions to “construction operations” set out in section 105(2) of the Construction Act 1996, I was looking at the supply-only exception and its proviso in section 105(2)(d). I concluded  that post by saying: “I think that this case further reinforces the need to abolish the exclusions in section 105(2).” When Matt … Continue reading TCC considers the section 105(2) exclusions (again) →

I’ve lost count of the amount of times that Matt and I have blogged about cases involving the exclusions to “construction operations” set out in section 105(2) of the Construction Act 1996. In almost all of those blogs that I’ve written, I’ve questioned the need for the exclusions and advocated their abolition: for example, see … Continue reading Does the supply of concrete include “installation” as well as “delivery” for the purposes of the Construction Act 1996? →

For some years now modular construction has been on the increase for new buildings, particularly in the hotel sector where it is now the norm for new hotels to be supplied with bathrooms and bedrooms manufactured off site. Indeed, I suspect that most of us have stayed in such rooms without even realising that more … Continue reading Court of Appeal’s useful guidance on implying isolated payment provisions from the Scheme →

I did a quick search to see what the internet could tell me about August. Apart from being the eighth month of the year, and one of seven months with 31 days, the Anglo-Saxons called it Weod monath, which means Weed month, because it is the month when weeds and other plants grow most rapidly. … Continue reading Homeowners beware – adjudication can catch you out →

Back in 2014, Matt blogged about the issue of whether adjudication is cost-effective for low value disputes. This was following the Court of Appeal’s judgment in Walker Construction (UK) Ltd v Quayside Homes Ltd where, following a low value adjudication over an outstanding payment of £23,400, the parties took the matter to trial and the … Continue reading Will new adjudication schemes solve the problem of rising adjudication costs in low value disputes? →

A couple of months ago Matt and I were asked to speak to some experts about what adjudicators really want from them. Given that there haven’t been many reported adjudication enforcements lately, I thought this week would be a good opportunity to share some of my tips.

In recent months, we haven’t seen many challenges to adjudicator’s decisions based on allegations that the adjudicator breached the rules of natural justice, and so it came as a bit of a surprise last week to see two handed-down by the same judge on the same day! Jefford J has dealt with these cases in … Continue reading Jefford J decides brace of natural justice challenges →

Once adjudication had found its feet in the early noughties, there was said to be only two ways for a responding party to avoid the consequences of an adjudicator’s decision. The first was to demonstrate that the adjudicator did not have the necessary jurisdiction, and the second was to demonstrate that they had made a … Continue reading Fraud, glorious fraud? →

When I wrote about Coulson LJ’s judgment in Bresco  v Michael J Lonsdale, Cannon  v Primus back in January, I said that I thought the waiver points applicable to jurisdictional reservations were: “… of greatest use to parties and those representatives who deal with adjudications on a day to day basis. After all, how often do adjudications involve insolvent … Continue reading Are jurisdictional reservations flavour of the month? →

The Court of Appeal’s judgment in S&T v Grove is still the most talked about construction case almost four months after it was handed down, which has much to do with the questions that parties and representatives raised about its practical implications. I discussed some of these implications shortly after the judgment was handed-down, and … Continue reading The TCC applies S&T v Grove (with a twist) →

It was only published at the end of last week, so I’m not sure if you’ve had chance to look at Coulson LJ’s judgment in Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd, Cannon Corporate Ltd v Primus Build Ltd. If not, then you should. It contains some important stuff about liquidation and CVAs, … Continue reading Does Cannon v Primus mean an end to general jurisdictional reservations? →

Firstly, and most importantly, a Happy New Year to you all! As regular readers to this blog will know, in our first piece each year Matt or I like to set out our construction law wish list for the coming 12 months. I don’t know whether it’s been caused by over indulging in turkey and … Continue reading My 2019 wish list →

A couple of weeks ago, Matt wrote about his tenth anniversary of blogging for Practical Law Construction. He mentioned my blogging birthday was also coming up. At the time, I wasn’t sure if I’d do a 10th birthday blog, after all, with Matt and John Hughes-D’Aeth celebrating the 10th anniversary, what more could there be … Continue reading I’ve been blogging for ten years as well →

“Never has a Court of Appeal judgment been so eagerly awaited by the construction law community as the appeal in S&T (UK) Ltd v Grove Developments Ltd.” I admit that this might be somewhat of an exaggeration, but I’ve certainly been keen to read it ever since I heard that Coulson J’s (as he was then) judgment … Continue reading Implications of the Court of Appeal’s decision in S&T v Grove Developments →

I’ve not long returned from the Windy City where I attended the 8th International Society of Construction Law Conference.  I chaired a session titled “Bringing Order To The Delay Melee: Understanding the SCL Delay & Disruption Protocol and AACE RP 29R-03”. Most of you will be aware of the SCL Protocol, which is now in … Continue reading Practical implications for extension of time claims following North Midland v Cyden Homes →

It is the start of autumn and July seems a long way off now, with the summer holidays all over and the World Cup just a distant memory. Consequently, it may be easy to have forgotten about Vinci Construction UK Ltd v Beumer Group UK Ltd, which had its latest outing in the TCC at the end … Continue reading Vinci v Beumer: the case that keeps on giving (and giving) →

For the first time in quite a while I am in the enviable position of having more than one adjudication enforcement case to choose to write about this week.  In the end I plumped for Beach Homes v Hazell and Hazell as it raises some interesting points about bespoke dispute resolution clauses. It is a … Continue reading The pitfalls of bespoke ADR clauses →

One of the recurring themes on this blog is looking at what happens in arbitration and drawing parallels with what happens in adjudication. It is something that really interests me as I act as both adjudicator and arbitrator. This week is no different and I am looking at the judgment in Fehn Schiffahrts GmbH & Co … Continue reading Appeals on a point of law in arbitration and adjudication →

You may recall that back in November I blogged about the UK government’s review of the 2011 amendments to the Construction Act 1996, and I revisited the topic after the consultation closed in January. The results of the consultation have not been published and the relevant page of the BEIS website does not give an … Continue reading Security of payment legislation in Australia – a time for change? →

The Palladium is a mighty fine looking “superyacht”. It is an impressive 95 metres long and has all the features one would expect on such a luxury craft, including a helicopter landing pad and swimming pool. A Google search suggests that the yacht is worth circa $200 million, so one can see that a defect in … Continue reading Determination of preliminary points of law by courts in arbitration and adjudication →

The Construction Act 1996 turned 20 this month, which means that for the last 20 years the UK’s construction industry has been subject to its statutory adjudication and payment rules. I was just a couple of years out of university 20 years ago, so I’ve never really known a world without these things (something that … Continue reading 20 years of statutory adjudication →

Section 33 of the Arbitration Act 1996 imposes a duty on arbitrators to “act fairly and impartially as between the parties” and section 24(1)(a) provides that the court has the power to remove an arbitrator if circumstances exist that “give rise to justifiable doubts as to his impartiality”. This week I’m looking at the Court of … Continue reading Court of appeal finds arbitrator in Deepwater Horizon case not biased →

It’s been some time since I blogged about a Scottish adjudication enforcement case, so I was pleased to be sent Pentland Investments Ltd v Aitken Turnball Architects Ltd recently. It’s good to be back in the world of Sheriffs, decrees of absolvitors, diets of taxation and the like.

Just like experts are a recurring theme on this blog, it seems that project monitoring is too, as I have considered the judgment in Bank of Ireland v Watts Group plc, looked at the judgment in Bank of Ireland v Faithful & Gould Ltd and I have also discussed the judgment in Lloyds Bank plc v McBains Cooper Consulting Ltd. I’m back … Continue reading Court of Appeal reverses contributory negligence apportionment in project monitoring case →

Two recent judgments illustrate the difficulties that oral contracts can cause in adjudication enforcement proceedings. The first was Jefford J’s judgment in Hart v Ideal and the second (although actually the first in time) was Fraser J’s judgment in Dacy v IDM (which had also been before Jefford J a couple of years earlier).

Unless you have been hiding under a rock (or have been on holiday somewhere), you can’t have failed to notice that Coulson J has handed down his last substantive TCC judgment. So much has already been written about Grove v S&T and what it means for the construction industry that there’s barely been room for anything … Continue reading Does Grove v S&T herald the dawn of a new regime for payment notice disputes? →

Some of you may recall that back in 2015 I wrote about the Conflict Avoidance Process (CAP) developed by RICS’ Dispute Resolution Service and Transport for London. Since then CAP provisions have been included in the contracts of four major TfL projects, and there have been memoranda of understanding signed on other projects to allow … Continue reading From CAP to DAP: developments in dispute avoidance →

I haven’t blogged about alleged breaches of natural justice for a while, so here goes with the first reported judgment from Joanna Smith QC, who was sitting as a deputy High Court judge in the TCC. In my view, the judgment in Victory House General Partner Ltd v RGB P&C Ltd is very well written: it … Continue reading Has the “rough justice” principle of adjudication been extended too far? →

Some of you may recall that in November last year I blogged about the government’s consultation on the 2011 amendments to the Construction Act 1996. Not the most exciting topic I admit, but important nevertheless. The consultation closed last Friday (19 January), and I hope as many of you as possible had your say. I was … Continue reading An update on the 2011 Construction Act amendments →

This week I’m discussing Glencore Agriculture BV v Conqueror Holdings Ltd, which is a case arising out of a voyage charterparty for the transportation of corn from the Ukraine to Egypt. Some of you might be wondering how this is relevant to construction disputes, but I assure you it is, both in respect of arbitration and … Continue reading Dangers of using email to serve arbitration (or adjudication) notices →

In DC Community Partnerships Ltd v Renfrewshire Council, Lord Doherty held that the adjudicator failed to exhaust his jurisdiction when he failed to deal with a set off defence (which was pretty clear cut). While that part of the judgment is what immediately jumps out at you, to my mind the really interesting part is the fact that the judge found … Continue reading You don’t need to have served a pay less notice to set off in adjudication (apparently) →

Bates and others v Post Office Ltd is an interesting group litigation involving over 500 claimants. In it, Fraser J has given the parties a stern warning about why he is not going to fix hearings to take account of counsel’s availability. It got me thinking about how adjudicators should deal with the unavailability of representatives and, … Continue reading How should adjudicators deal with the unavailability of witnesses and representatives? →

On the face of it, Jefford J’s judgment in Merit Holdings Ltd v Michael J Lonsdale Ltd is a fairly typical one about payment, arising as it does, out of the construction of a new development, One Angel Court, London. However, her comments about when parties should use Part 8 for “adjudication business”, as set out in the … Continue reading What is and isn’t adjudication business in the TCC →

On 1 May 2018 it will be 20 years since the Construction Act 1996 came into force. I think it is fair to say that, despite initial reservations by some about its introduction, most people would agree that, overall, the statutory adjudication and payment provisions have been successful. That said, like any adolescent, its teenage years have … Continue reading 2011 amendments to Construction Act 1996 are under review →

After a summer of writing about arbitration and experts, it is nice to turn my attention to adjudication for a change. As the observant will realise, this is my second adjudication case in a row! Jacobs UK Ltd v Skanska Construction UK Ltd was a dispute all about the adequacy of Jacobs’ design services, which related … Continue reading Can a party withdraw from adjudication part way through and what are the implications? →

It’s been a while since I’ve blogged about a payment notice case, and so the case of Jonjohnson Construction Ltd v Eagle Building Services Ltd caught my eye. Unfortunately, it’s another one of those cases that isn’t on BAILII, so not all of you reading this will have access to it. It’s a great shame … Continue reading “Ingenious arguments” fail to topple “smash and grab” award →

I’ve been sent a judgment from earlier this year: Maurice J Bushell & Co v Graham Irving Born. It is all about whether, following an arbitration, the court should allow an appeal on a point of law under section 69 of the Arbitration Act 1996 and, if so, should the matter be remitted back to … Continue reading Error of law leads to remission of issue to arbitrator, not the Award set aside →

A few weeks ago, I looked at what Coulson J had to say about experts in Bank of Ireland v Watts. This time, I’m turning my attention to Fraser J’s judgment in Imperial Chemical Industries Ltd (ICI) v Merit Merrell Technology Ltd (MMT). You may recall that Matt has already looked at some of the payment issues that came out of this … Continue reading Expert behaviour and joint statements in the spotlight →

A few weeks ago, I looked at what Coulson J had to say about experts in Bank of Ireland v Watts. I’m returning to that judgment this week to look at the project monitoring angle. Just like experts are a recurring theme on this blog, it seems that project monitoring is too, as I have I looked … Continue reading Project monitoring surveyor not negligent →

For those of you not old enough to remember, back in the 1980’s, Frankie goes to Hollywood released a song called “Two Tribes”, which featured the line, “When two tribes go to war”. Having recently read Fraser J’s judgment in ICI v Merit and Coulson J’s judgment in Bank of Ireland v Watts, and given their … Continue reading When two judges go to war (on experts) →

Although I have never done so myself, it is clearly acceptable for an adjudicator to ask parties to comment on a case or other point of law that neither has mentioned in their submissions. It is also clearly acceptable for an adjudicator to ask parties to expand on and/or clarify contentions made in their submissions, … Continue reading To what extent can and should adjudicators ask questions of the parties? →

It’s been a while since I’ve blogged about arbitration, but that’s certainly not because there are a shortage of arbitrations, either domestically or internationally. Indeed, on a couple of occasions this year I’ve had more active appointments as arbitrator than adjudicator. It was therefore with interest that I read O’Farrell J’s judgment in Ian Rollitt … Continue reading The dangers of not paying the arbitral tribunal’s fees →

It often feels like it is feast or famine when it comes to cases to write about on this blog. We appear to be in a stage of famine at the moment, and I’m not exactly sure why. Certainly it isn’t because parties have stopped adjudicating (because, if your recent experience is anything like mine, … Continue reading Adjudicator’s decision enforced and no stay pending separate Part 8 hearing →

We don’t often see cases where a party has issued a winding-up petition to get paid, rather than adjudicating its payment dispute. Perhaps it is because it is usually an unsuccessful way of getting paid, as was demonstrated recently in Breyer Group plc v RBK Engineering Ltd, which was heard by Daniel Alexander QC in the Chancery … Continue reading Adjudication versus a winding-up petition →

We haven’t seen a case referring to approbation and reprobation for quite some time, at least not in a substantive sense (I know, I checked). Therefore, I read with interest HHJ McKenna’s judgment in Dawnus Construction Holdings Ltd v Marsh Life Ltd, where the court held that by inviting the adjudicator to exercise his powers … Continue reading Reminder not to approbate and reprobate in adjudication →

Last month, Fraser J handed down his judgment in Aecom Design Build Ltd v Staptina Engineering Services Ltd, where he held that the adjudicator (Ms Gaynor Chambers) did not exceed her jurisdiction or breach the rules of natural justice. As a result, the court declined to make a declaration that would have severed parts of her decision. … Continue reading Getting caught by the “catch all” wording in adjudication →

It’s been some time since we’ve blogged about a case involving allegations of breaches of the rules of natural justice against an adjudicator. However, fear not because the Outer House of the Court of Session’s judgment in Bell Building Projects Ltd v Arnold Clark Automobiles Ltd contains some juicy natural justice arguments. It’s a story of … Continue reading Scottish court rejects allegations of breaches of the rules of natural justice →

It’s been a busy time in the Cope household recently, what with the arrival of my baby daughter. However, I’ve now managed to catch up on a few of the TCC’s recent judgments. One of those was Jefford J’s judgment in Symbion v Venco. Although ostensibly about an application under section 68 of the Arbitration … Continue reading Arbitrator shouldn’t have unilateral contact with one of the parties →

As some of you may well have seen, the second edition of the Construction Industry Council’s Users’ Guide to Adjudication has now been published, and not before time. The first edition was published in 2003, when most of us were still using the original Nokia 3310.  I have said a couple of times in past … Continue reading The Ladybird guide to adjudication →

Many of you reading this will no doubt at some point have visited the Rolls Building in London, the home of the Chancery Division, the Admiralty and Commercial Courts, and the TCC. It was opened by the Queen in December 2011, but it would have been open somewhat earlier if the project had not been … Continue reading Time for assessment of delay damages against sub-contractors →

At the end of last month, I blogged about payment and pay less notices following Alexander Nissen QC’s judgment in Surrey and Sussex Healthcare NHS Trust v Logan Construction (South East) Ltd. This blog is also about payment and pay less notices, but this time I’m looking north of the border, to the Sheriff Appeal Court’s judgment in Trilogy Services … Continue reading Is it easier to succeed with a default payment notice claim in Scotland than in England? →

The TCC has started 2017 at quite a canter and has handed down a number of interesting judgments. One that particularly caught my eye was Surrey and Sussex Healthcare NHS Trust v Logan Construction (South East) Ltd, which is another case on everyone’s favourite topic: payment notices and pay less notices.

The ingenuity of the arguments parties raise in adjudication and adjudication enforcement never ceases to amaze me. However, sometimes they are simple and straightforward. As an example, take the judgment in Universal Piling & Construction Ltd v VG Clements Ltd. Universal applied for declaratory relief to determine whether the second adjudicator had jurisdiction to deal with … Continue reading Court rejects “same or substantially the same” jurisdictional argument →

No doubt we’ve all now had enough of reading about the annus horribilis of 2016, so I’m not going to dwell on that. Rather I want to set out my 2017 construction law wish list.

A few weeks ago I read with interest Peter Brogden’s blog on some of the key changes included in the JCT’s 2016 suite of contracts. Of particular interest were his comments on payment, where he identified three main changes, including how a “common valuation date” will operate across the supply chain. This obviously depends on every … Continue reading JCT payment changes and summary judgment →

Before anyone objects, I know that I have lifted this title from a blog that Matt wrote in October 2013 but, quite frankly, when writing about stays can you think of a better title? I certainly can’t, so apologies to Matt (and The Clash) for the plagiarism. When the party seeking to enforce an adjudicator’s decision … Continue reading Should I stay or should I pay now? Adjudication and insolvency →

I’ve written about expert determination before, but not for some time as it is relatively rare that the courts get to consider this method of dispute resolution. This is probably due to the fact that there are normally such limited grounds on which an expert’s determination can be challenged. Therefore, I was interested to see … Continue reading Parties in same dispute jam on M25 contract →

Let me begin with an apology. It may not have escaped your notice that the titles to the majority of our recent posts have been quotes from the cases that we’ve written about, so I was loathed to do so again this week. However, when I read the judgment in Kilker Projects v Rob Purton (t/a … Continue reading “Payment of any final sum… is based on enforcement of the contractual bargain” →

My last post considered a Fraser J judgment (Beumer Group v Vinci Construction) and used a line from the judgment as the title. This post does the same, only this time the judgment is Amey Wye Valley Ltd v Hereford DC. No Will Smith reference on this occasion though, just a case about roads and … Continue reading “Adjudicators are not expected to be perfect” →

For the keen-eyed among you, you will recognise where I have borrowed this week’s title from. For those who are none the wiser, it comes from Fraser J’s judgment in Beumer Group UK Ltd v Vinci Construction UK Ltd  (at paragraph 22). He wasn’t referring to the “wicky wicky wild wild wild west” immortalised by Will … Continue reading “Adjudication is not the Wild West of dispute resolution” →

I wonder if you, like me, sometimes get confused by the names and numbers of the Star Wars films. For those of us born before the 80’s there were only ever three: Star Wars, The Empire Strikes Back and Return of the Jedi. However, now the first film is called Star Wars: Episode IV – … Continue reading Harding v Paice and Springall – Episode V: a case of no apparent bias →

In my last blog, I looked at the potential conflict between section 108A of the Construction Act 1996 and section 5A(2A) of the Late Payment Act 1998, and concluded that the recent case of Lulu v Mulalley hasn’t provided us with a definitive answer to the question of whether a conflict exists. This week I’m … Continue reading Adjudication costs and the Late Payment of Commercial Debts (Interest) Act 1998 (Part 2) →

Very occasionally a case pops up on BAILII from a number of months ago meaning that, if you’re not careful, you’ll miss it. That is what happened a few weeks ago when Lulu Construction Ltd v Mulalley & Co Ltd (which was decided in March) suddenly appeared. This case is interesting because it concerns an issue … Continue reading Adjudication costs and the Late Payment of Commercial Debts (Interest) Act 1998 (Part 1) →

Think of a payment dispute under a construction contract and you usually think about adjudication. After all, it has become the method of choice for resolving construction disputes and was introduced primarily to deal with cash flow, often referred to as the lifeblood of our industry. Therefore, in Volkerlaser Ltd v Nottingham City Council, I … Continue reading Is applying for summary judgment an alternative to adjudication? →

We are all familiar with the section 106 residential occupier exception in the Construction Act 1996. Notwithstanding that exception, we are equally familiar with residential occupiers entering into building contracts that contain adjudication clauses and (probably) the most common of all the contracts used in this situation is the JCT’s Minor Works Building Contract. Therefore, in Goldsworthy … Continue reading Court considers failure to complete standard form contract and section 106 →

Some of you may recall that last year I wrote about Rider 1 to the SCL’s Delay and Disruption Protocol. Well, we now have the long-awaited second edition, which has been published in draft form for consultation. Delay and disruption touches on many of the disputes that you will be involved in, so I would … Continue reading SCL Delay and Disruption Protocol consultation – your chance to have your say! →

I don’t know about you, but across a number of adjudications recently, I’ve been seeing ever increasingly complex payment terms (especially in bespoke sub-contracts). Clearly this can lead to problems, as was amply demonstrated in Bouygues (UK) Ltd v Febrey Structures Ltd. 

I acknowledge that many of you will pick me up on the first part of the title of this week’s blog. As you may know, Sir Robert Akenhead is no longer a High Court judge but he has been sitting as a judge in the TCC due to the current shortage of judges in that … Continue reading Akenhead J is back and has widened the scope of construction adjudication →

There was a great deal of furore leading up to the Supreme Court’s judgment in Cavendish Square Holding BV v Talal El Makdessi and Parking Eye Ltd v Beavis, and how the legal landscape might change in distinguishing valid liquidated damages clauses from penalties. Therefore, it was with baited breath that I visited the Supreme … Continue reading Makdessi made simple, but will it have any impact on the construction industry? →

We don’t see many construction arbitration cases come to appeal in the TCC. Therefore, Carr J’s judgment in John Sisk & Son Ltd v Carmel Building Services Ltd is a useful reminder that one of the advantages of arbitration is that, unless the parties have agreed otherwise, they can appeal points of law under section 69 … Continue reading TCC rejects allegations that arbitrator erred in law →

Back in 2011, when Jeremy Corbyn was a mere back-bencher and few of us were aware of what an emoji was, I wrote a blog on the amendments to the Construction Act 1996. The blog arose from a panel debate held by the Adjudication Society concerning the amendments to the Act’s payment provisions. Five years … Continue reading Alternative tactics to obtain payment (but only where there are no “shadowy” claims) →

Coulson J’s opening remarks in Penten Group Ltd v Spartafield Ltd set the scene for what followed, and for what I am going to discuss this week – serial adjudication: “And now the wheel has turned again and the courts are grappling with the consequences of what might be termed serial adjudication. …this is a case bedevilled … Continue reading Adjudication enforcement arguments “change with the seasons” →

These days, adjudicators don’t always get named in TCC judgments. It seems to depend on who the judge is, what the matters in dispute are and how well the adjudicator performed. That said, Coulson J is one judge who seems to like naming the adjudicator and the keen-eyed among you will have noticed that Matt … Continue reading TCC reminds parties too many adjudication challenges are without merit →

Most of the judgments that Matt and I comment on in this blog come from the TCC but, occasionally, the Court of Appeal graces us with an adjudication related judgment. It is one such judgment that I want to talk about this week: Mr & Mrs Brown v Complete Building Solutions Ltd. The judgment is … Continue reading A clear case of different disputes, as confirmed by the Court of Appeal →

Unlike some meetings held during the course of construction projects, pre-start meetings can be quite refreshing. There is normally an air of positivity and of everyone wanting to work together to make the project a success (the bitterness of disputes has not yet set in). I want you to imagine that such a pre-start meeting … Continue reading Beware, you may not be entitled to interim payments right up until practical completion →

Most of you reading this blog are likely to have read a domestic main contract or sub-contract in the past few days (if not the past few minutes) under which a dispute has arisen. Many of you will also be saying to yourselves, “of course I know whether I can arbitrate my dispute under that contract … Continue reading Can I arbitrate my dispute? →

Those of you that are members of the Adjudication Society and/or the Chartered Institute of Arbitrators may well have seen that these two organisations have recently come together again to publish the third update of their guidance note for adjudicators, Jurisdiction of the UK Construction Adjudicator. I welcome the updated guidance note. It is an interesting … Continue reading Updated jurisdictional guidance for UK adjudicators →

In a rather lengthy judgment handed down just before Christmas, Stuart-Smith J has shown once again the TCC’s pragmatic approach to the enforcement of an adjudicator’s decision, and how the judges are not allowing overly technical challenges to defeat the purpose of the payment provisions of the Construction Act 1996. In case you missed it amongst the festivities, … Continue reading Questions over basis of parties’ contract no barrier to adjudication enforcement →

Let me take you back almost 12 months to my blog on ISG v Seevic. I left you with the following question: “What would have been the case if this had been the final payment, rather than an interim payment?” Would the same principle apply so that Seevic was not entitled to refer a dispute … Continue reading Harding v Paice and Springall – the Christmas special →

Fraser J is the latest High Court judge appointed to the TCC. His judgment in Science and Technology Facilities Council v MW High Tech Projects UK Ltd was one of the first that he handed down and the first one that I have written about. It is good to see a fresh face in the TCC. With … Continue reading TCC considers the impact that paying an adjudicator’s fees has on jurisdictional challenges →

Last week saw the launch of RICS’ new construction and engineering arbitration service. Now, before I go any further, I should declare an interest. I chaired the working party responsible for developing the service, so I acknowledge that I may be somewhat biased. Why bother? A question I have been asked on a number of … Continue reading A new dawn for domestic construction and engineering arbitration? →

Deciding the dispute Earlier this year, I wrote about the proposed Hong Kong Security of Payment Legislation. Recently I have been fortunate enough to travel to this vibrant city to talk to some budding adjudicators about decision writing. Part of my workshop was about the process that an adjudicator might follow in reaching his decision. … Continue reading What to reasonably expect from your adjudicator’s decision (part 3) →

Last year, I wrote about Bank of Ireland v Faithful & Gould which, to the best of my knowledge, was the first time the TCC had considered the role of a project monitoring surveyor (PMS). That case did rather turn on its facts though, and most of us probably learnt more about vesting certificates, than the role … Continue reading When property developments go wrong →

Formulating the issues Someone recently asked me who chooses the photographs for our blog, and I explained that it was the good people at Practical Law. It’s quite a tough task to find photographs that relate to the subjects we blog about, so this week I’d pondered suggesting a photograph of a West Highland Terrier. … Continue reading What to reasonably expect from your adjudicator’s decision (part 2) →

Part 1: hey good looking It’s a real shame that the adjudication guidance produced by the Construction Umbrella Bodies Adjudication Task Group (CUBATG) has never been updated, as it really is very good. Unfortunately, it is now extremely out of date. There are also some excellent adjudication guidance notes produced by the likes of the RICS … Continue reading What to reasonably expect from your adjudicator’s decision →

Well, in the words of Bananarama, it’s been a cruel cruel summer: well, at least August has. The weather has been shocking in the UK and I’ve heard more than one person say that they’ve already put their central heating on. Not only that, Matt and I have only had one TCC case to write about. … Continue reading Hong Kong dips its toe into statutory adjudication →

Expert determination is used to resolve many types of disputes, particularly disputes of a specialist or technical nature. It is a binding process that can be a quick and effective means of determining such disputes, but only when it works. When it goes wrong, as with many other things, it can become costly and time consuming … Continue reading With expert determination, the expert must do what he was appointed to do →

A few weeks ago a group of people emerged from a dark and smoky room after years of negotiations and announced to the world that they had at last reached agreement. No, I am not talking about the recent Iranian nuclear deal, but rather the first amendment to the Society of Construction Law’s Delay and … Continue reading Rider 1 to the SCL protocol: common sense prevails →

The parties in Harding (t/a MJ Harding Building Contractors) v Paice and Springall are fairly familiar to us now, as this is the third time we’ve seen a reported judgment arising out of the building contract that Harding entered into with Messrs Paice and Springall. This one is actually the first of the three, even though … Continue reading Harding v Paice and Springall – the prequel →

The people of London and the UK should be proud of the London Underground, and there is absolutely no doubt in my mind that without it, London would not be the international powerhouse it is today. Imagine if all of the journeys made by tube each day were made by bus and car? Chaos would … Continue reading Mind the CAP, TfL’s conflict avoidance panel →

Some years ago Tony Bingham wrote about the Society of Construction Law (SCL) in his column in Building Magazine: “…let me coax you to join the SCL. It’s the best ‘something’ I’ve ever joined. It does nothing, except get folk to give a talk, a paper, express a view, mull over construction law. Yes, there are … Continue reading Adjudication and consumers revisited →

While the judgment in ISG Retail Ltd v Castletech Construction Ltd is not particularly long, it is interesting case because it concerns some juicy facts and arguments that we don’t often see in adjudication enforcement cases, such as an advance payment, allegations of a total failure of consideration and a claim for restitution.

Just a month ago I said that there had been a “plethora of interesting cases streaming out of the TCC”. I obviously spoke (or was that wrote?) too soon as, since then, the steady stream of case law that we’d got used to appears to have dried up. That isn’t to say that there haven’t … Continue reading When building projects go wrong →

By all accounts arbitration is enjoying a bit of a resurgence. Rising court fees and increasing costs management in the TCC, as well as an increasing number of international contractors working in the UK, appears to be leading to more and more parties choosing arbitration, rather than litigation, in their contracts. However, even though parties enter into … Continue reading Arbitration, adjudication and insolvency →

Let’s be honest about it, Matt and I have been slightly spoilt over the past few months when it comes to adjudication enforcement cases to blog about. There has been a plethora of interesting cases streaming out of the TCC, and the latest instalment from Coulson J is CSK Electrical v Kingswood Electrical.

By now many of you will have read the most recent instalment in the battle between Gary Paice and Kim Springall (property developers), and MJ Harding (building contractor). In Paice and another v MJ Harding, Coulson J concluded that a fair-minded observer would consider that there was a real possibility that the adjudicator, Mr Sliwinski, … Continue reading What can we learn from Paice v Harding? (other than the points on bias…) →

Slips can be costly, as Steven Gerrard knows only too well. Arguably, his slip in a game against Chelsea last season cost Liverpool the Premier League title. But it’s slips in adjudicator’s decisions that I want to talk about today. Parties occasionally claim that items they disagree with in an adjudicator’s decision constitute slips when it … Continue reading Slip resistance: the importance of correcting slips on time →

I recently blogged about Savoye v Spicers, where Savoye successfully enforced the adjudicator’s decision after Akenhead J agreed that the conveyor belt Savoye installed formed part of the land and therefore the work constituted “construction operations” for the purposes of section 105 of the Construction Act 1996. As a result, the contract was a “construction contract” … Continue reading Adjudication is suitable for disputes little and large →

Over the years we’ve seen a number of adjudication cases in the TCC involving professional negligence, one of the most significant being London & Amsterdam Properties v Waterman Partnership. We’ve also had plenty of commentators question the suitability of adjudication for resolving professional negligence disputes. So with Valentine’s Day last week, I thought it appropriate … Continue reading Professional negligence and adjudication – an unsuitable match? →

I think that most of us would agree that the law concerning an adjudicator’s jurisdiction (as well as issues related to natural justice), is now fairly well established and that, given the TCC’s strong support for adjudication, judges will dismiss spurious jurisdictional and natural justice challenges. I therefore get the impression that, while such challenges are regularly put … Continue reading A useful reminder that spurious jurisdictional challenges in adjudication will fail →

What have the Romans ever done for us? comes from Monty Python’s Life of Brian and was the inspiration for this post: “All right, but apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, the fresh-water system, and public health, what have the Romans ever done for us?” As I learnt from reading … Continue reading Construction contracts and construction operations looked at again →

The importance of three little words that should not be underestimated. I am of course talking about “subject to contract” and how the failure to use them in Malcolm Charles Contracts Ltd v Crispin and another proved to be expensive for one party.

It was Max Abrahamson who famously once wrote: “A party to a dispute, particularly if there is arbitration, will learn three lessons (often too late): the importance of records, the importance of records and the importance of records. It is impossible to exaggerate the extent to which lawyers can find unexpected grounds, often quite real, … Continue reading The importance of notices, the importance of notices and the importance of notices →

We have removed the content of this post as the judgment it referred to was heard in private and should not have appeared on BAILII.

If you Google my name (so I am told as I obviously wouldn’t do that myself…), I’m nowhere to be seen. The first hit you get is the former lead male in the Royal Ballet (the name is where the similarities end) and an English General who took a pounding from the Scots in 1745. … Continue reading Nominating adjudicators in the wake of Eurocom v Siemens →

For those of you that practise solely in England, the Inner House of the Court of Session is the Scottish equivalent of the English Court of Appeal. As we seldom see decisions related to adjudication from either court, it is therefore worthwhile taking a look at Lord Bracadale’s judgment in T Clarke v MMaxx Underfloor … Continue reading Scottish Inner House confirms the right to adjudicate at any time →

I’ve talked about dispute boards on a number of occasions over the past few years, but only once did it involve a case in the TCC. Fans of dispute boards will be pleased to hear that the TCC has recently handed down another judgment on this topic and, on this occasion, it involved a dispute … Continue reading TCC grants stay to enable FIDIC dispute board to proceed →

The English language is full of phrases and idioms in everyday use. A few that spring to mind include it’s raining cats and dogs, on a wing and a prayer, horses for courses, pillar of strength and all sweetness and light. We all use them and we all understand what they mean, even if they may appear nonsensical to … Continue reading Expert determination cases are a bit like buses as two come along together →

The RICS recently undertook a rigorous review of its adjudication panel, with some members leaving and a handful of high quality new members joining. On speaking to one of those new members, he commented that “this adjudication lark isn’t as easy as it looks, is it?”. Quite. One of the most difficult areas concerns jurisdiction, … Continue reading Scope of jurisdiction: Court of Appeal decides expert’s determination invalid →

Summer is swiftly drawing to a close, but while many of us have been on our holidays, the construction industry appears to have been running at full-bore throughout the summer. Although there was a minor stagnation in July, there is still a significantly greater volume of work than compared to five years ago, and labour … Continue reading Decision day negotiations – it’s never too late to settle →

This post looks at the latest guidance from the Civil Justice Council, Guidance for the instruction of experts in civil claims 2014, which was published last month and takes effect this autumn. In contrast to Surveyors acting as expert witnesses, which I discussed last time and which is aimed at RICS members and applies to any form of … Continue reading Latest guidance on acting as an expert – part 2 →

Over the years, I have written about various guidance aimed at those working to resolve disputes. This includes RICS’ guidance on how to deal with conflicts of interest and how to be an adjudicator. Two more pieces of guidance have recently been published. This post considers Surveyors acting as expert witnesses (fourth edition), which RICS published … Continue reading Latest guidance on acting as an expert – part 1 →

When I read Lord Malcolm’s judgment in Bouygues E&S Contracting UK Ltd v Vital Energi Utilities Ltd, I was reminded of the TV game show, Supermarket Sweep. For those unfamiliar with Supermarket Sweep, as far as I can remember (with a little help from Wikipedia) the premise was that contestants played games to accumulate time, … Continue reading Challenges to adjudicator’s decision reminds me of Supermarket Sweep →

For those of you unfamiliar with the role of the project monitoring surveyor (PMS), they are commonly appointed by banks or other funding institutions to advise on the risks of acquiring an interest in a development, and then monitoring the development, approving draw-downs from the funding institutions and the like. As a result of many developers … Continue reading TCC offers guidance for project monitoring surveyors →

It’s not often that we get a TCC judgment dealing with the interpretation of everyone’s favourite suite of domestic contracts, the JCT. Therefore, if you are a bit of a saddo like me, you will have read Akenhead J’s judgment in Oksana Mul v Hutton Construction Ltd with interest. In this case Akenhead J decided … Continue reading “Appropriate deduction” – it’s not money for nothing →

Let me start with an apology. I appreciate that this is the second time I’ve blogged about this rather dry subject this year. However, after April’s blog on the subject (Privilege and adjudication revisited), a friend of mine pointed out a twist which may mean that non-solicitor firms offering claims consultancy services can rely on legal … Continue reading Could legal advice privilege apply to claims consultants after all? →

EM Forster may have written the classic novel, Where Angels Fear to Tread but, at this time of year, it may not be angels that have to look where they are going, but people, especially in urban areas with a gull population. If you are wondering what I’m referring to, take a look at the … Continue reading Witness evidence, memories and gull chicks →

Spring may be a time for lambs to frolic in the fields but, it seems, it isn’t a time for adjudicators to frolic, at least not on this occasion. If you are wondering what an earth I’m talking about, take a look at Lord Malcolm’s judgment in Miller Construction (UK) Ltd v Building Design Partnership Ltd. This is … Continue reading Court of Session finds adjudicator didn’t go off on a frolic →

After seeing that Akenhead J’s judgment in Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar was published recently, I thought it was about time I sat down and read it. However, I had second thoughts when I saw that it stretched to 170 pages and wondered what interesting bits I could skip … Continue reading Conditions precedent – a glimmer of hope for contractors? →

We haven’t seen an adjudication enforcement judgment from Ramsey J in quite a while, so it was good to read Laker v Jacobs recently. I think it is quite an interesting case as it touches upon lots of “common” enforcement issues (such as jurisdictional challenges and an adjudicator’s use of the slip rule). However, it is the circumstances … Continue reading Let’s put section 105(2) of the Construction Act 1996 into Room 101! →

Privilege is not a new topic to these pages. For example, I considered it after the judgments in Walter Lily v Mackay (see Claims consultants beware) and R (Prudential plc and another) (see Legal advice privilege limited to lawyers). However, in Walter Lily, Akenhead J said that there was an important caveat: “…there remains an outstanding … Continue reading Privilege and adjudication revisited →

Some projects seem destined to generate disputes and a composting facility commissioned by Devon County Council seems to be one of them. As far as I can tell, to date there have been nine adjudications, two hearings in the TCC and one arbitration between the Council and Celtic (the contractor), who, confusingly, is called Bioenergy Ltd in … Continue reading The composting case that’s proved to be fertile ground for disputes, but could this latest one have been avoided? →

I was lucky enough to travel to Dublin a couple of weeks ago to talk at a conference about the Construction Contracts Act 2013, Ireland’s long awaited answer to the UK’s Construction Act 1996. My job was to talk about my experience of construction adjudication and how this might be relevant to adjudication in the Emerald Isle. … Continue reading Behold the Celtic adjudication tiger (almost) →

My title may not be a very catchy one, but with Westminster and Holyrood currently disagreeing about everything (or so it seems), it certainly is a relevant one. I have talked before about English and Scottish judges taking different approaches to issues and the Court of Appeal’s judgment in Lindum Group v Fernie is another example.

I often wonder what it must be like to be the author of a legal text book, especially one that covers an area like adjudication law, where cases come out of the courts thick and fast. No sooner is a book published that it is out of date as a result of those new cases. That’s certainly … Continue reading Setting the judicial cat amongst the adjudication pigeons →

A trip down the sweetshop memory lane brings to mind a whole host of childhood goodies: black jacks, flying saucers, cola cubes, sherbert fountains and, of course, refreshers. Described on one website I found as a “fizzy fruity sherbet hard candy sweet”, a refresher is also often used to describe a course or seminar that gives people … Continue reading TCC gives a refresher of some important adjudication principles →

I’m unsure if it’s now too late to say this, but happy New Year to you all. I signed-off 2013 by talking about my fear of Christmas games. Well, I can proudly say that I was on the winning team in a game of Articulate (I was also on two losing teams but let’s not … Continue reading No “near miss” theory in adjudication enforcement →

Christmas is approaching and for many of us that means it’s the time when board games are dusted off and some serious competition begins. I confess that I’m more a Trivial Pursuits than Taboo man, mainly because I’m normally hopeless at guessing what other people are trying to describe, and when it’s my turn I always end … Continue reading A CVA “Get out of jail free” card for responding parties in adjudication? →

I will hold my hands up and admit that I was slightly sceptical when I saw that the Chartered Institute of Arbitrators (CIArb) was intent on publishing its own dispute board rules. Why do we need another set of rules? Also, the CIArb’s stated aim of providing rules that cater not only for construction and … Continue reading CIArb dispute board rules – you decide →

In the early ’80’s, Soft Cell sang Say hello, wave goodbye. It probably isn’t as well known as the dance floor-filler that is Tainted Love, but it is a song that came to mind when I read Akenhead J’s judgment in Brims Construction v A2M Development Ltd. If you are wondering why, it is because the court … Continue reading Waive goodbye to your jurisdictional challenge →

We might have another 11 months until the Scottish referendum, but I’ll lay my cards on the table. I think partition of the UK would be a real shame so, if I had a vote (which I don’t), it would be “no”. While there are a variety of economic and political considerations, ultimately, it’s for … Continue reading Yuanda followed in the TCC →

After the summer slowdown, the TCC is back in full swing and judgments are starting to appear on BAILII. Of last week’s new additions, the one that really caught my eye was KNN Colburn LLP v GD City Holdings Ltd, mainly because GD City contended that there were multiple reasons why the adjudicator’s decision shouldn’t … Continue reading Take note of when your adjudication timetable starts →

It was Mick Jagger that famously sang “You can’t always get what you want”. Well Mick, I’m pleased to report that I have got what I want; a case that proves the point I was making in a recent blog. Back in July, I wrote about ABB Ltd v BAM Nuttall Ltd in which Akenhead … Continue reading Read all about it: adjudicator didn’t commit a serious breach of the rules of natural justice →

The post-summer holiday construction law party season is well under way. So far I’ve been lucky enough to mix with the flamingos at Kensington roof gardens and the opera goers at Covent Garden. It was at one of these events that a couple of people, I’ll call them Jack and Jill, had a bit of … Continue reading Are adjudicators applying the “new” payment regime correctly? →

While the TCC is still open over the summer holidays, it isn’t operating at full bore. The consequential slow down in published cases has given me an opportunity to catch up with some of this year’s non-adjudication cases, and one in particular that caught my eye was Mi-Space v Lend Lease Construction.

A few weeks ago I spent an interesting evening at the Rolls Building taking part in the current consultation on mandatory costs budgeting. The consultation is being chaired by Sir Peter Coulson and, amongst other things, it is considering the desirability of retaining the Admiralty and Commercial Courts’ blanket exception to the mandatory costs budgeting … Continue reading Is arbitration a viable means of avoiding mandatory costs budgets in the TCC? →

So, after many months of waiting we’ve finally got the news we had been waiting for: it’s a boy or, as one tabloid newspaper put it, “The Regal has landed”. The media has whipped the public into a frenzy and created Royal baby hysteria. Similar hysteria sometimes results in the construction law world when significant … Continue reading Read all about it: adjudicator commits serious breach of natural justice rules →

It was Paul Daniels who made the phrase, “You’ll like this… not a lot, but you’ll like it” famous. Perhaps that would have been apt last week when the IMF revised its 2013 growth forecast for the UK from 0.7% to 0.9%. Not great, but it’s a start. However, there is no doubt that it … Continue reading Parent company guarantee stops stay of adjudication – now that’s magic! →

Did you realise that there are a multitude of different types of surveyors? Not just the usual suspects such as land surveyors (those standing by the side of the road in high-vis jackets with theodolites) and quantity surveyors (the “brick counters”), but also arts and antiques surveyors, machinery and business assets surveyors, and so on. … Continue reading What constitutes “surveying work” in the Construction Act 1996? →

I’ve blogged before about the advantages that adjudication and arbitration can sometimes offer over the court system. For example, last year I considered this topic after West Country Renovations v Mr and Mrs McDowell, where Akenhead J decided that claims for less than £250,000 should be commenced in county courts or other High Court centres … Continue reading Party costs in adjudication →

Over the past 10 to 15 years, more and more construction contracts have included good faith clauses, and yet there are relatively few cases on this subject. However, over the past year we’ve had the first instance judgments in Mid Essex Hospital Services NHS Trust v Compass Group UK and Yam Seng PTE v International … Continue reading Cases on good faith clauses are a bit like waiting for a bus… →

Offshore wind farms tend to split the public like Marmite: most people seem to be either vocal supporters or vehement opposers. Unlike Donald Trump, who clearly falls into the latter category, I’m in the former camp. I think that they are essential to meet our future energy needs. However, one thing that I’ve always wondered … Continue reading Perils of wind farms as LISA unceremoniously dumped at sea →

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 … Continue reading Whyte and Mackay v Blyth & Blyth: the case that keeps on giving →

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 … Continue reading If I had more time, I would have written a shorter submission →

For those of you that haven’t read it yet, I would urge you to read the judgment in Westfields Construction Ltd v Clive Lewis. It was an application to enforce an adjudicator’s decision, and I assure you that the rest of Coulson J’s judgment lives up to the teaser in the opening paragraph: “Although the … Continue reading Abolish section 106? I’m not so sure M’Lud… →

What a brilliant hymn this is (and I’m not even Welsh…). Even if you haven’t stepped inside a church for some time, you can’t have missed its inclusion in the 2011 wedding of Prince William and Kate Middleton and the opening ceremony for last year’s London 2012 Olympic and Paralympic Games. We could all do with … Continue reading Guide me O thou great redeemer →

I thought this week that I would discuss when happens when a dispute gets out of hand. Disputes, by their very nature, can be very stressful for the parties. The outcome can affect the survival of businesses, whether people keep their jobs or even their houses. However, when crimes are involved, disputes take on a … Continue reading Fraudulent misrepresentation in construction disputes →

Last week, the Supreme Court handed down its judgment in R (Prudential plc and another). It may not have come as a surprise that the court held, by a majority of 5:2, to limit to members of the legal profession the right to claim legal advice privilege (LAP).

We all know (from bitter experience) that conferences and seminars can vary in quality. You can come away from some feeling exhausted by the breadth and depth of what you’ve learnt (for example, the recent TeCSA Adjudication conference was excellent), but others have left me wondering why I bothered making the effort to go (but I’m … Continue reading The importance of confidentiality in adjudication →

A few weeks ago, I wrote about the role of expert witnesses under the Dubai’s civil code. Matt has also discussed experts recently, looking at the difficulties an expert may face, depending on his client and the nature of the dispute. Given the importance of expert evidence in construction disputes and the sheer number of people … Continue reading Experts under the spotlight again →

Akenhead J first suggested the possibility of severing an adjudicator’s decision in Cantillon v Urvasco back in 2008. However, while severance was also discussed by the TCC later that year in Quartzelec v Honeywell Control Systems, it wasn’t until earlier this year in Working Environments v Greencoat Construction that an adjudicator’s decision was actually severed. … Continue reading Severing an adjudicator’s decision Cato-style →

I was recently fortunate enough to be asked to speak at a dispute resolution conference in Dubai, which was jointly organised by Dubai Land Department and RICS. On one of the days, I took part in an expert witness workshop. It was fascinating to talk to people who act as experts in the local courts: Dubai … Continue reading Educating the experts →

In October 2011, I wrote a couple of blogs on the “simplified” Construction Act 1996 payment provisions. I concluded by saying that: “…once the questions over the meaning of some of the amendments have been resolved, I actually think that the amendments will be quite effective at maintaining cash flow.” One year on, I thought … Continue reading First 12 months of the new payment provisions →

RICS has recently published the third edition of its guidance note, Surveyors acting as adjudicators in the construction industry. As is usual with RICS guidance concerning dispute resolution, I should declare an interest. I am chairman of the RICS Dispute Resolution Professional Group (DRPG) and the DRPG is responsible for standards concerning dispute resolution, including … Continue reading A guiding hand in adjudications… →

I’ll let you into a secret. While I’ve no doubt that partnering contracts can forge effective working relationships, it doesn’t follow that disputes won’t arise. I know I won’t be popular with certain sectors of the construction industry for saying so, but it’s true. Indeed, earlier this year, I was the adjudicator in a dispute … Continue reading £84,540 for a chocolate mousse – that’s a bit rich… →

Each summer I normally spend some time updating my note on global claims. It’s not normally a particularly taxing job and, since the Scottish case of John Doyle Construction Ltd v Laing Management (Scotland) Ltd, there haven’t really been any significant developments in the law. However, this summer has been somewhat different, and my task has been significantly … Continue reading Global claims after Walter Lilly v Mackay →

A few weeks ago I gave you some of my practical tips for making or defending extension of time claims in adjudication. This week I thought I’d give you some practical tips concerning money claims, by which I mean, claims for loss and expense or damages. I appreciate that it might appear that I’m “teaching grandmother to … Continue reading Back to basics – loss and expense and damages claims →

Anyone that swims in the pool of construction disputes will, at some point, have come across an agreement to settle a construction dispute. Lawyers will often pour over the wording in painstaking detail, arguing for the inclusion or exclusion of certain clauses. (I suspect there’s a stock list depending on whether they’re acting for the … Continue reading Perils of settling construction disputes →

I appreciate that I said in my last blog that I would follow up with practical tips concerning loss and expense claims, however since then a couple of interesting cases have emerged from the TCC so the practical tips will have to wait for another week. One is WW Gear v McGee Group, which is … Continue reading Adjudication and Part 8 – the latest instalment →

At a recent conference, I was asked to sit on a panel to discuss time and money claims.  Each panellist was asked to give a short talk on the subject from the perspective of our backgrounds, and I therefore gave mine from the tribunal’s perspective. Given that I only had ten minutes, I focused on practical tips … Continue reading Back to basics – extension of time claims →

Picture this scenario. Your construction contract: Pre-dates the legislation changes on 1 October 2011 (in England and Wales). States that the applicable adjudication rules are the most recent rules published by, for example, the CIC, TeCSA or CEDR. My question is, when a dispute is referred to adjudication in 2012, should the adjudicator apply the … Continue reading Conundrum about which adjudication rules apply →

To answer my own question, “Are dispute boards a viable means of resolving disputes in the UK?”, I’d say yes. Others may disagree, but I’ll explain why I think this.

In my last blog I talked about Walter Lilly & Company Ltd v Giles Mackay and DMW Developments Ltd, where Akenhead J found that advice given by claims consultants does not attract legal professional or legal advice privilege. That got me thinking about disclosure and privilege in adjudication proceedings. Disclosure requests are certainly something I’m seeing more … Continue reading Disclosure in adjudication after Walter Lilly v Mackay →

I recently wrote about West Country Renovations v Mr & Mrs McDowell. While it wasn’t strictly necessary for the purposes of the case, Akenhead J produced a judgment providing guidance on the value and types of claims that the TCC in the High Court in London will deal with. Continuing with the theme of providing helpful guidance, earlier … Continue reading Claims consultants beware →

Recently, Matt and I gave a talk to RICS members in Dubai while in the UAE on business. I’m not sure who enjoyed the evening more though, the delegates who sat through “loss and expense claims in practice“, or Matt and I listening to their stories of the disputes that arise on projects in the Arabian … Continue reading The transferable skills of the adjudicator →

I tend to keep quite a close eye on BAILII to see what’s coming out of the TCC (sad, I know). Up to last week, February had been somewhat quiet, a drought in fact. However, as the month draws to a close a couple of cases have appeared (but not the rain!). One of the cases … Continue reading Adjudication or arbitration as viable alternatives to court →

Some of you may have seen that the RICS has published guidance on how to deal with conflicts, helpfully called Conflicts of interest. I should declare an interest at the outset (not a conflict though!). While I wasn’t an author, I am chairman of the RICS’ Dispute Resolution Professional Group (DRPG) and the DRPG is responsible for … Continue reading RICS’ conflicts guidance →

Or should that be “The return of the pink socks”? I appreciate that many of you won’t thank me for mentioning Christmas now that the new year is upon us, but the courts provided us with some last minute reading in the week leading up to… the end of Advent. Not only did the Court … Continue reading Remember: the grounds for withholding must be valid →

There are 32 London boroughs (plus the City of London), but a quick review of the reported cases over the last five years shows that only one has ended up in the TCC trying to resist the enforcement of an adjudicator’s decision: Camden, and not just once. Camden’s previous trips to the TCC have not … Continue reading Party to construction contract can’t be adjudicator nominating body too! →

Well, Christmas is almost upon us and the television is already full of adverts of what we can look forward to watching over the festive period. As well as another heart-stopping instalment of Downton Abbey, I’m rather hoping A Christmas Carol will be on (the Muppets version obviously). Rather like Ebenezer Scrooge in the Dickens classic, … Continue reading A Christmas (adjudication) Carol →

Last week Matt blogged about the case of NAP v Sun-Land. He made the point that “it was clear to me that the employer’s representatives were less familiar with the adjudication process than one might like…”. While that may well have been the case, the employer’s representatives nevertheless succeeded in achieving a partial stay of the adjudicator’s … Continue reading NAP v Sun-Land: not such a bad result after all? →

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.

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 … Continue reading The “simplified” Construction Act 1996 payment provisions (part 1) →

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 … Continue reading What’s the point in writing it down? →

I don’t know about you, but I often find that the introduction to a TCC judgment sets the tone of the dispute and (I’m embarrassed to say) influences whether I read the entire judgment or simply pick out the interesting bits and then turn to the end for the result. I was certainly encouraged to … Continue reading Concurrency (and promiscuity) in the TCC →

In adjudication there is always the potential of the losing party who is, probably, liable for some if not all of the adjudicator’s fees, trying to avoid paying those fees. If the losing party can dress that up as a challenge to the reasonableness of the fee they are being asked to pay, the more likely they will make … Continue reading Reasonableness of adjudicator’s fees – a victory for common sense →

The Adjudication Society, in conjunction with the Chartered Institute of Arbitrators, has recently published guidance for adjudicators, Jurisdiction of the UK Construction Adjudicator. I welcome the guidance note. It is an interesting and helpful document, which highlights that ensuring “an adjudicator has the jurisdiction to decide the dispute referred to him is of utmost importance to the … Continue reading Guidance on jurisdiction for UK adjudicators →

I was reading an old case recently where one side was represented in court by a very eminent QC, while the other side was using junior counsel. Maybe it was just me, but I couldn’t help noticing that the judge, almost without exception, accepted the senior counsel’s points while dismissing the junior counsel’s points. Now, I’ve no … Continue reading Unwitting bias of the adjudication tribunal →

My last post was all about the “great” section 108A debate (or the “not so great” section 108 debate as one of my fellow PLC bloggers put it!). I’m back again to talk about it, or at least the subject of Tolent clauses, which section 108A was intended to banish from our world of adjudication. … Continue reading Tolent 1 – 0 Yuanda →

In last week’s post, I outlined the views of the two camps in the “great section 108A debate”, namely: The narrow interpretation camp, which considers that section 108A of the Construction Act 1996 (as amended) will banish Tolent clauses, but permit clauses allowing adjudicators to allocate their fees and expenses. The wide interpretation camp, that argues … Continue reading The “great” section 108A debate – part 2 →

The Society of Construction Law has hosted various “great” debates over the years, most memorably the Great Delay Analysis Debate. A new title the SCL may wish to consider is the “great section 108A debate”, as I seem to hear about little else at the moment.

Or should that be “Damp squib Part 2”? (For Part 1, see Matt’s April 2010 post.) When BIS launched its consultation on the Scheme for Construction Contracts 1998, we were all hopeful that, once our answers to the consultation had been submitted, it would pave the way for the amendments to the Scheme and the … Continue reading Does seeing the Scottish Scheme mean we are a step closer to the Construction Act amendments? →

There have only been a couple of TCC cases reported since the new year, so I thought I’d use the lull to revisit the subject of meetings in adjudication, and specifically some of the questions that parties might ask about them.

What is a global claim? A global claim may be defined as a claim where a global or composite sum is put forward as the measure of damages or contractual compensation where there are two or more separate matters of claim or complaint, and where it is said to be impractical or impossible to provide a … Continue reading Global claims: what are they and how do you plead one? →

There is no doubt that construction adjudication has become much more technical since its introduction in 1998. Those experienced in adjudication will be familiar with the nuances of pre-adjudication tactics, jurisdictional challenges, the best ways of getting time extensions and so on. Once an adjudication starts it goes at such speed that decisions regarding procedure, challenges, … Continue reading Adjudication representatives: Getting the right person for the job →

In his Building column in November 2007, Tony Bingham wrote about the House of Lords decision in the Fiona Trust case. You’ll remember it: it’s the one where the House of Lords decided that the words “disputes arising under a contract” in an arbitration agreement are wide enough to include disputes “in connection with” the contract.

Well, it looks like we might finally be getting the amendments to the Construction Act 1996 that we were promised by Gordon Brown over four years ago.  After a review by Sir Michael Latham and two consultations, a draft Bill was eventually published by DBERR in July 2008 (July 2008 Bill) (see Legal update). Many … Continue reading Will they ever get it right? The Construction Contracts Bill 2008 →