- October 30, 2018
I’ve been blogging for 10 years!
Earlier this year, I was reminded by those lovely people at Practical Law Construction that I’ve been blogging for them for ten years, ever since they launched in October 2008. They told me this is my 320th post, which works out at an average of 2.66 posts a month. If only I had a £1 for … Continue reading I’ve been blogging for 10 years! →
- October 2, 2018
Adjudicator’s chicken and egg jurisdictional dilemma
The last time I looked at the dispute between Rawlings Consulting (UK) Ltd and Maelor Foods Ltd, I was talking about HHJ Eyre’s judgment and how the arbitration clause in a JCT standard building contract can “trump” a Part 8 application for declaratory relief. This time, I’m looking at HHJ Stephen Davies’ judgment and Maelor’s (the employer) … Continue reading Adjudicator’s chicken and egg jurisdictional dilemma →
- September 18, 2018
Arbitration clause “trumps” Part 8 application to overturn adjudicator’s decision
When I was a kid, Top Trumps were all the rage. I know from my own boys that they still are. Back then, it was all about whether you had the fastest car or the most popular footballer (even Star Wars characters featured, but how did you decide if Hans Solo was better than Princess Leia?). … Continue reading Arbitration clause “trumps” Part 8 application to overturn adjudicator’s decision →
- August 21, 2018
Fraser J seeks an end to “preponderance of partisan experts”
I liked the classics at school and did rather well in them. When I last wrote about ICI v MMT, I referred to Hercules and Hydra. This time, I’m delving further into Greek mythology, with reference to Scylla and Charybdis, which is used in the context of the idiom “being between Scylla and Charybdis”. It means “having … Continue reading Fraser J seeks an end to “preponderance of partisan experts” →
- July 24, 2018
Parties can’t adopt a “sit on the fence” approach to quantum
I’ve said before that I like reading Fraser J’s judgments because he has a nice turn of phrase and a penchant for plain talking. This is highlighted in his latest ICI v MMT judgment, where the following caught my eye: “I do not share the good cheer of Jackson J at such a task.” He was talking … Continue reading Parties can’t adopt a “sit on the fence” approach to quantum →
- June 26, 2018
When litigation “stands as something of an advertisement for adjudication”
Last summer I wrote about Fraser J’s “89-page opus” in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd (or ICI v MMT). This week, my attention turns to his latest 95-page opus between the same parties. Last year the judgment was all about liability (which MMT won). This time, it was all about the numbers … Continue reading When litigation “stands as something of an advertisement for adjudication” →
- June 5, 2018
I was re-reading the Ikarian Reefer only last week
Sometimes the old cases are the best ones and that surely has to be true of the Ikarian Reefer. Even now, over 25 years since the judgment at first instance was handed down (and countless other pieces of guidance have been published) we still see experts getting it wrong. I’m not sure if anyone remembers … Continue reading I was re-reading the Ikarian Reefer only last week →
- May 22, 2018
Fraud and its impact on proceedings, including adjudication
I was in Dublin last week giving a talk to the Irish branch of the SCL. I’d prepared a talk on fraud in arbitration, adjudication and mediation and, during the day, I was made aware of the judgment in WL Construction Ltd v Chawke and Bohan (a thank you is due to Mark Warren in this regard). As … Continue reading Fraud and its impact on proceedings, including adjudication →
- May 8, 2018
The cacti shop and the tattoo parlour (yes, really)
Sometimes being sent a court judgment can prove to be a welcome distraction from decision writing and that is certainly the case with HHJ Melissa Clarke’s judgment in Martinez (t/a Prick) and another v Prick Me Baby One More Time Ltd (t/a Prick) and another. If you haven’t seen this one (and why would you, it is a … Continue reading The cacti shop and the tattoo parlour (yes, really) →
- April 24, 2018
Cash flow tensions in adjudication enforcement
Much has been written about Fraser J’s judgment in Gosvenor London Ltd v Aygun Aluminium UK Ltd, with both Tim Sampson and Abdul Jinadu discussing various issues on this blog. What I thought was interesting about the judgment was how it illustrates the tension between adjudication and the principle embodied within it of keeping cash flowing, … Continue reading Cash flow tensions in adjudication enforcement →
- April 10, 2018
“I’m forever blowing bubbles” but I’m biased!
Bias and apparent bias is a subject that has cropped up many times on this blog, whether it was an adjudicator “phoning a friend“, an arbitrator (allegedly) being appointed too many times by the same referring party (although that isn’t one of mine!) or a judge getting upset over his lost luggage (who wouldn’t be?). It … Continue reading “I’m forever blowing bubbles” but I’m biased! →
- March 27, 2018
Witness “was not a reliable historian”
I like reading Fraser J’s judgments. Where else would you get phrases such as “banter in a public house during consumption of a gallon of ale (or lager)” and “quite apart from any illumination of the wisdom (or otherwise) of discussing (still less agreeing) incentive payments of such extraordinary size at an evening of drinking … Continue reading Witness “was not a reliable historian” →
- March 13, 2018
Reminder that adjudicator’s appointment lapses if no decision
Some judgments seem destined to be blogged about (at least by me) and Baldwin v J Pickstock Ltd is one such judgment. It’s all about the adjudicator’s decision (or lack of), whether there was an extension of time for reaching that decision and whether the adjudicator had properly resigned and should be paid for the work he … Continue reading Reminder that adjudicator’s appointment lapses if no decision →
- February 27, 2018
Adjudicator mentoring, a tale of a chicken and an egg
When I sat down to write this week’s blog, we hadn’t had a published judgment on an adjudication case for a few weeks. That may have changed with Coulson J’s last TCC judgment, which came out today, but I’m leaving that one for Jonathan next week. Instead, you get a short piece on something I … Continue reading Adjudicator mentoring, a tale of a chicken and an egg →
- February 13, 2018
Partial stay as “claimant is now an SPV with no P”
Coulson J has a certain turn of phrase, one that will be sadly missed from TCC judgments when he moves up to the Court of Appeal next month. My title is borrowed from the discussion on whether there ought to be a stay execution, hidden away at paragraph 71 of his judgment in Equitix ESI CHP … Continue reading Partial stay as “claimant is now an SPV with no P” →
- January 30, 2018
Court orders party to adjudicate final account dispute
There is a well-known saying, “beggars can’t be choosers”, which is generally accepted to mean that sometimes you have to accept a situation because it is the only one available to you. I feel a bit like that discussing a recent Fraser J extempore judgment, Meadway Private Clients (Liongate) Ltd v Wildacre Ltd. What caught my eye in the … Continue reading Court orders party to adjudicate final account dispute →
- January 16, 2018
Court of Session reminds us how tough it is to resist enforcement of adjudicator’s decision
I’ve talked before about the meaning of a kitchen sink claim, where one of the parties has thrown everything (and the kitchen sink) into its claim. The concept also crops up in adjudication enforcement proceedings, when the defendant raises as many arguments as it can to resist enforcement of the adjudicator’s decision. It is how Practical … Continue reading Court of Session reminds us how tough it is to resist enforcement of adjudicator’s decision →
- January 2, 2018
My 2018 wish list
I always like looking forward to the forthcoming year, to things I’d like to see happen, and also reflecting on what I’ve wished for in the past, and seeing whether those things have been achieved. It’s a bit like being Ebenezer Scrooge in Charles Dickens’ A Christmas Carol, when he is visited by the ghost of … Continue reading My 2018 wish list →
- December 19, 2017
Getting your payment ducks in a row will avoid adjudication
As an adjudicator you don’t often get involved with what happens between the parties after you have issued your decision (unless they appoint you again), although you are always on the look-out to see whether you’ve been enforced or whether your decision has been successfully challenged. Irrespective of whether you are kept in the loop … Continue reading Getting your payment ducks in a row will avoid adjudication →
- November 28, 2017
Back to school for lessons on Scottish assignation law (or assignment to you)
I had a feeling of deja vu when I looked at Lord Bannatyne’s judgment in Edinburgh Schools Partnership Ltd v Galliford Try Construction (UK) Ltd, not only because Galliford Try were involved, but because the main focus of the judgment was on assignation, the Scottish equivalent of assignment. I looked at these issues earlier this year when … Continue reading Back to school for lessons on Scottish assignation law (or assignment to you) →
- November 14, 2017
How testing the evidence differs in adjudication and court
When I read Fraser J’s judgment in Riva Properties Ltd v Foster + Partners Ltd, the thing that struck me was how, in adjudication, we don’t always get the benefit of seeing the evidence tested to the same degree as you do in court or arbitration proceedings.
- October 31, 2017
Is the notice an adequate agenda for an adjudication?
When it comes to the adequacy or otherwise of a pay less notice under the Construction Act 1996, I was reminded the other day of something that Alexander Nissen QC (sitting as a Deputy High Court judge) said in Surrey and Sussex Healthcare NHS Trust v Logan Construction (South East) Ltd, namely that it is … Continue reading Is the notice an adequate agenda for an adjudication? →
- October 24, 2017
Adjudicator’s time spent on multifaceted dispute was reasonable
Getting paid is a subject that is close to everyone’s heart. It is probably why I have blogged about payment so much over the years, from the early days when I considered when I would get paid to my most recent piece about adjudicators’ T&C’s. Along the way, I’ve looked at a variety of other topics, such as at … Continue reading Adjudicator’s time spent on multifaceted dispute was reasonable →
- October 10, 2017
Expert’s evidence was extraordinary and “shot through with breath taking arrogance”
For those of who have a weekly blog to populate with content, the court’s summer recess can prove to be a challenging time. It leads us to cast our net further afield looking for ideas and cases to highlight. That is why, this week, I’m looking at two cases from August, one a personal injury … Continue reading Expert’s evidence was extraordinary and “shot through with breath taking arrogance” →
- September 26, 2017
Don’t give a judge an excuse not to enforce you
As an adjudicator, you face a number of hurdles when you go about your daily business of being an adjudicator. It starts before you even begin work, when you are first approached to be appointed to adjudicate on a matter, and continues throughout the dispute, right up to the crescendo of your involvement, when you … Continue reading Don’t give a judge an excuse not to enforce you →
- September 12, 2017
Using Part 8 to “appeal” adjudicator’s decision
It isn’t every day that we get to refer to Will Smith’s “wicky wicky wild wild wild west“, on this blog, but Jonathan managed it last year when he discussed Fraser J’s judgment in Beumer Group UK Ltd v Vinci Construction UK Ltd. The parties have been before the court again, this time before O’Farrell J, on a … Continue reading Using Part 8 to “appeal” adjudicator’s decision →
- August 22, 2017
Recovering your adjudication costs, or not
Much has been written over the years about whether a party can recover its costs of an adjudication. I wonder if a recent O’Farrell J ex tempore judgment is the last (or just the latest) word on the matter. In football speak, is it one nil to the Construction Act 1996? If you are not … Continue reading Recovering your adjudication costs, or not →
- August 15, 2017
What do your T&C’s say about payment?
I wonder how many adjudicators have checked their T&C’s since the judgment in Christopher Linnett Ltd v Harding (t/a M J Harding Contractors) came out. I know we did, just to be sure that it is clear who any appointment is with, where the money should go and what rights we have if we don’t get … Continue reading What do your T&C’s say about payment? →
- August 1, 2017
Has the door been left ajar for counter-adjudications following a smash and grab?
Imperial Chemical Industries Ltd (ICI) v Merit Merrell Technology Ltd (MMT) is Fraser J’s latest 89-page opus. It was a liability-only trial covering 16 agreed issues and sub-issues arising out of the parties’ dispute following works at ICI’s new paint processing plant in Ashington, Northumberland. Those issues included the correct contractual specification for the pipework testing, the extent of the alleged defects … Continue reading Has the door been left ajar for counter-adjudications following a smash and grab? →
- July 18, 2017
Cherry picking defence was “odd (and potentially risky)” approach
Earlier this year, I wrote about O’Farrell J’s judgment in Mailbox (Birmingham) Ltd v Galliford Try Construction Ltd. That case was all about legal and equitable assignment. The parties have now been back before the court, this time in front of Coulson J, and have been arguing about the scope of two adjudications. The first concerned … Continue reading Cherry picking defence was “odd (and potentially risky)” approach →
- July 4, 2017
The ostrich approach to dealing with adjudication
When I was reading Stuart-Smith J’s judgment in Lobo v Corich, I started thinking about the different types of party that come to adjudication, or get embroiled in the process as a responding party. As you might imagine, not everybody takes part enthusiastically. In fact, some could be said to be extremely reluctant. As Lobo v … Continue reading The ostrich approach to dealing with adjudication →
- June 20, 2017
Adjudication and payment (under the Construction Act 1996) go to Canada
If you think of Canada, what do you think about? Maple syrup, ice hockey, skiing, Whistler, Bryan Adams, Celine Dion, Justin Beiber? It probably depends on your age as much as anything. However, what you are unlikely to think about is the Latham Report from 1994. It is unsurprising really, since the two are unrelated. I … Continue reading Adjudication and payment (under the Construction Act 1996) go to Canada →
- June 6, 2017
Incorporating main contract terms into a sub-contract
There are a number of interesting aspects to HHJ Keyser QC’s judgment in Dawnus Construction Holdings v Amey LG Ltd, not least that during the course of the project, the parties referred four separate disputes to four different adjudicators. That makes it a really good example of serial adjudication, if ever I saw one. It … Continue reading Incorporating main contract terms into a sub-contract →
- May 23, 2017
“Fraud unravels everything”
The title of this post comes from Lord Denning’s infamous statement in Lazarus Estates Ltd v Beasley that: “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained … Continue reading “Fraud unravels everything” →
- May 9, 2017
Court of Appeal considers judge’s excessive witness questioning
A few years ago I wrote a post on whether adjudicators should act judicially, which looked at a talk by Lord Hamilton, who was then the president of the Scottish Court of Session. Lord Hamilton posited the question, “What has acting judicially to do with adjudicators?”, and I considered a number of the judicial values that … Continue reading Court of Appeal considers judge’s excessive witness questioning →
- April 25, 2017
Earlier this year it was suggested to me that I should take a look at Irwin LJ’s judgment in EXP v Barker, in part because the topic of experts is a familiar one on this blog. Time and time again, experts do something (or don’t do something), that causes the judge (whether at trial or on appeal) … Continue reading Experts again →
- April 18, 2017
Oral construction contracts and parties who represent themselves
I’m not sure that parties who represent themselves and issues about an oral sub-contract (or three) are necessarily good bedfellows, as Coulson J recently found out when he had to deal with a challenge to the adjudicator’s decision in RCS Contractors Ltd v Conway. It’s a short judgment (only 22 paragraphs), but it is a … Continue reading Oral construction contracts and parties who represent themselves →
- April 4, 2017
Adjudicator failing to “exhaust his jurisdiction” and the slip rule
It has been a few years since I wrote about an adjudicator failing to “exhaust his jurisdiction“, but it cropped up recently in NKT Cables A/S v SP Power Systems Ltd, where Lady Wolff held that the adjudicator had failed to “exhaust his jurisdiction”. She also found that a slip rule could be implied (for the first time … Continue reading Adjudicator failing to “exhaust his jurisdiction” and the slip rule →
- March 21, 2017
Interplay between dispute provisions of NEC3 framework and supply contracts considered
It may not be the most snazzy title, but how best to described the intricacies of Coulson J’s judgment in Costain Ltd v Tarmac Holdings Ltd? I could say it was all about Tarmac’s application to stay court proceedings to arbitration (under section 9 of the Arbitration Act 1996), or that the case turned on … Continue reading Interplay between dispute provisions of NEC3 framework and supply contracts considered →
- March 7, 2017
Arbitrator not biased and didn’t appear to be biased
It was just over a year ago that we were all reading about the Commercial Court’s decision in Cofely v Bingham to remove an arbitrator under section 24 of the Arbitration Act 1996, finding that there were grounds that raised the real possibility of apparent bias. Fast forward to 2017 and, once again, arbitrator removal has been before … Continue reading Arbitrator not biased and didn’t appear to be biased →
- February 21, 2017
Legal and equitable assignment arguments delivered through the mail
Gosh, O’Farrell J’s judgment in Mailbox (Birmingham) Ltd v Galliford Try Construction Ltd is enough to make your head hurt. While the adjudication enforcement principles appeared relatively simple, the court had to grapple with the question of whether Mailbox had the right to refer a dispute to adjudication in the first place. That means there … Continue reading Legal and equitable assignment arguments delivered through the mail →
- February 7, 2017
What notice? Did I forget something?
Given the “draconian consequences” of getting the timing under the Construction Act 1996 wrong, I can only imagine what a sinking feeling a party must experience when it realises that it hasn’t served a payment or pay less notice on time. In Kersfield Developments (Bridge Road) Ltd v Bray and Slaughter Ltd, it is likely to have happened to … Continue reading What notice? Did I forget something? →
- January 24, 2017
It was the halogen lamps that did it, m’lud
In a Cluedo-esque look at what caused a fire at Mead House in Appleshaw, I could say it was Professor Plum with the candlestick in the library or Miss Scarlet with the lead pipe in the conservatory (or even Colonel Mustard with the dagger in the dining room). What may not spring to mind is the pest … Continue reading It was the halogen lamps that did it, m’lud →
- January 10, 2017
Caribbean dream turns to sand in luxury beach resort development
We saw a number of really long judgments from the TCC in 2016. Think Stuart-Smith J’s judgment in the Ocensa Pipeline Group Litigation as an example. I don’t know why but it feels like I always seem to be the one that gets to cover them (even if that isn’t true). Therefore, you can imagine my … Continue reading Caribbean dream turns to sand in luxury beach resort development →
- December 20, 2016
Who are the parties to a contract?
Reading the judgment in Dacy Building Services Ltd v IDM Properties LLP, it reminded me of just how tough it can be being an adjudicator, albeit you may not know this when you accept an appointment. At that stage, you have only seen the notice of adjudication, so you only have one party’s take on … Continue reading Who are the parties to a contract? →
- December 6, 2016
Serial adjudication again
A couple of weeks ago I wrote about the judgment in Niken v Trigram and highlighted some of the issues that arise in serial adjudication. Just as I went to press (so to speak), the issue popped up again, this time in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd. It is a long-running dispute that … Continue reading Serial adjudication again →
- November 22, 2016
The perils of serial adjudication
Major construction projects often result in a number of adjudications between the same parties. It is a hazard of the job, so to speak. Known as “serial adjudication“, it can give rise to a number of issues, not least the question of what the previous adjudicator(s) decided. While it is easy to say that the … Continue reading The perils of serial adjudication →
- November 8, 2016
Adjudication in Ireland is finally a reality
Construction adjudication in Ireland is finally a reality, as the Construction Contracts Act 2013 applies to construction contracts entered into after 25 July 2016. Over the years, both Jonathan and I have looked at the Act’s progress and, as I was in Dublin a few weeks ago for the latest adjudication and payment claims conference, I thought … Continue reading Adjudication in Ireland is finally a reality →
- October 25, 2016
“This is a classic case of one party making a bad bargain”
In keeping with Jonathan’s recent theme of using judicial quotes as blog post titles, I thought I’d do the same. This week, I’ve gone for Jackson LJ in the Court of Appeal in Balfour Beatty v Grove Developments. Jackson LJ went on in that paragraph to say: “The court will not, indeed cannot, use the canons … Continue reading “This is a classic case of one party making a bad bargain” →
- October 11, 2016
Contractual issue under PFI contract adjudicated then “appealed” to TCC
It’s funny how things go. It was only a few weeks ago that I wrote about the dispute resolution procedure that CEDR publishes designed for “PFI and long-term contracts”. Now, we have a court judgment looking at an adjudicator’s decision arising out of a PFI contract for the roads and streets lighting network in Birmingham. … Continue reading Contractual issue under PFI contract adjudicated then “appealed” to TCC →
- September 27, 2016
Adjudicators making mistakes
Way back in the depths of time (or July 2000 to be precise), the Court of Appeal took its first look at adjudication in an appeal from a Dyson J judgment (Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd). The principles that were laid down in that case have stood the test of time and the rest, … Continue reading Adjudicators making mistakes →
- September 20, 2016
RICS consults on fourth edition of adjudicator’s guidance note
When RICS published the third edition of its guidance note, Surveyors acting as adjudicators in the construction industry, it was Jonathan who told you all about the changes. Therefore, it is only fair that I take a turn and look at the consultation draft for the fourth edition, highlighting some of the proposed changes from the third … Continue reading RICS consults on fourth edition of adjudicator’s guidance note →
- August 30, 2016
CEDR’s dispute resolution procedure for PFI and long-term contracts
This year has been relatively quiet on the adjudication front, with relatively few reported cases. Consequently, I keep finding myself having to look at other things to write about. This has meant the topics have become more diverse as time goes on (and even Star Trek has managed to creep into the blog!). This week is no … Continue reading CEDR’s dispute resolution procedure for PFI and long-term contracts →
- August 23, 2016
The parties cannot agree whether a cow that is stuck in the mire will moo
Sometimes you see a judgment on BAILII and your heart sinks, not because of the subject matter of the case, but just the length of the judgment. I suspect I’m not alone in thinking that, nor was I the only one to experience that sinking feeling when I saw Stuart-Smith J’s judgment in the Ocensa … Continue reading The parties cannot agree whether a cow that is stuck in the mire will moo →
- August 9, 2016
Only the “plainest cases” will not be enforced, and this was not one of them!
It is a fundamental principle of English law that a defendant “who wishes to defend all or part of a claim must file a defence” (CPR 15.2). If a defendant fails to file a defence, the claimant may obtain judgment in default (CPR 15.3). Similarly, it is a principle of adjudication enforcement that the defendant … Continue reading Only the “plainest cases” will not be enforced, and this was not one of them! →
- July 26, 2016
Unintentional witness bias in court
A few weeks ago, I wrote about Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz, and the Court of Appeal’s assessment of whether the trial judge, Peter Smith J, was biased against the Prince. As I said then: “The Court of Appeal decided this ground of appeal should fail but, in doing so, it … Continue reading Unintentional witness bias in court →
- July 12, 2016
Some of the consequences of Deluxe v Beck
Earlier this year I wrote about Coulson J’s judgment in Deluxe Art & Theme Ltd v Beck Interiors Ltd. At the time, I wondered how parties in adjudication may react, particularly the responding party. It may only be a few months on but, with the restriction on the number of disputes that can now be before the same adjudicator at the … Continue reading Some of the consequences of Deluxe v Beck →
- June 28, 2016
Court of Appeal considers witness evidence and judicial bias
Almost a year ago I wrote about Peter Smith J’s recusal in Emerald Supplies v British Airways, which was made all the more interesting because it came about following the judge’s trip to Florence and his lost luggage experience on the return flight. More recently Peter Smith J has been in the news because of a letter he … Continue reading Court of Appeal considers witness evidence and judicial bias →
- June 14, 2016
Is expert shopping like parties manipulating the adjudicator appointment process?
Over the years, I’ve discussed many aspects of expert evidence, but I’m not sure I’ve covered expert shopping before. It was an issue that was before the TCC in Birmingham recently in Coyne v Morgan and another (t/a Hillfield Home Improvement) and it made me wonder if it is very different from when parties seek to manipulate the adjudicator … Continue reading Is expert shopping like parties manipulating the adjudicator appointment process? →
- June 7, 2016
“It’s adjudication Jim, but not as we know it”
I’ve borrowed this week’s title from Star Trek, although (according to the Google search I did), none of the original crew actually said “It’s life Jim, but not as we know it”, that comes from the song, Star Trekkin’. However, that is simply an aside and it doesn’t have a lot to do with the my topic for this week, … Continue reading “It’s adjudication Jim, but not as we know it” →
- May 17, 2016
Can you use adjudication to resolve preliminary issues?
We often see TCC judgments where the court has granted a party declaratory relief on an issue. When adjudication proceedings are (or have been) on-going, this commonly arises in the context of an adjudicator’s alleged breach of the rules of natural justice or because of a jurisdictional issue. Given the number of disputes that are referred to adjudication, … Continue reading Can you use adjudication to resolve preliminary issues? →
- May 10, 2016
Trends in adjudication are variable, a bit like the British weather
It was Cher who sang “If I could turn back time“, and that song came to mind when I was reading the latest adjudication survey results by Construction Dispute Resolution, in conjunction with the Adjudication Society. You may wonder why I’d think of that song, and it is because I was thinking about how construction adjudication … Continue reading Trends in adjudication are variable, a bit like the British weather →
- April 26, 2016
Successful use of Part 8 leads to adjudicator’s decision being severed
We don’t often see adjudicators’ decisions severed. Therefore, it came as a bit of a surprise to get to the end of Carr J’s judgment in Stellite v Vascroft and find that not only did she sever those parts of the adjudicator’s decision she held to be made in excess of jurisdiction, the parties had … Continue reading Successful use of Part 8 leads to adjudicator’s decision being severed →
- April 5, 2016
Payment issues are flavour of the month
Slowly but surely the TCC is working its way through the Construction Act 1996’s payment provisions and providing clarity where there may have been ambiguity. It reminds me of that phrase: “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.” This time it was … Continue reading Payment issues are flavour of the month →
- March 29, 2016
Implied terms in construction disputes, but not as we know them
It’s funny how the construction world can throw up cases with unexpected outcomes. For example, I recently commented on my surprise at Coulson J’s judgment in Deluxe v Beck Interiors. I was also similarly surprised by Edwards-Stuart J’s judgment in Manor Asset v Demolition Services, which was handed down just three days later. There the … Continue reading Implied terms in construction disputes, but not as we know them →
- March 15, 2016
No manifest injustice so no stay of enforcement
Last March I wrote about Edwards-Stuart J’s judgment in Galliford Try v Estura and the implications, both in terms of a party’s ability to start a counter adjudication following a “smash and grab” adjudication, and also with regard to the “manifest injustice” arguments that were raised in the enforcement proceedings. Almost a year on and we’ve had the second reported judgment … Continue reading No manifest injustice so no stay of enforcement →
- March 1, 2016
Mischief of referring multiple disputes to adjudication
So, now we all know that you can’t refer more than one dispute to the same adjudicator at the same time without the parties’ consent. Perhaps we always knew this, but am I alone in thinking that section 108 of the Construction Act 1996 and paragraph 8(1) of the Scheme for Construction Contracts 1998 were … Continue reading Mischief of referring multiple disputes to adjudication →
- February 16, 2016
“Who are ya?” (or meetings with the adjudicator)
I found the judgment in John Sisk v Duro Felguera an interesting read, particularly the adjudicator’s use of a third party (Mr Hutchinson) to assist him in the adjudication. It made me think about how I’d have dealt with the situation, if I had been in the adjudicator’s position and had wanted to use the services of … Continue reading “Who are ya?” (or meetings with the adjudicator) →
- February 2, 2016
Increased use of mediation in construction disputes
Is it just me, or has anyone else noticed that there is an increased use of mediation in construction disputes these days? Also, is it purely coincidental, or does it seem to have come at a time when there seems to be less adjudication (and adjudication enforcement) about? Perhaps it is simply that it is … Continue reading Increased use of mediation in construction disputes →
- January 19, 2016
Clarity is key when contract drafting and picking your ANB
It is ironic that in a judgment commenting on poor contract drafting (Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd), the judgment is particularly poor in explaining how the contract was put together and which amendments were made when. However, I guess that happens sometimes. Obviously, if the parties had been clearer about which adjudicator … Continue reading Clarity is key when contract drafting and picking your ANB →
- January 5, 2016
Say hello to 2016, wave goodbye to 2015
This is the seventh new year since I started writing this blog (and my seventh new year piece!). It feels like a lot has changed in those seven years, but has it really? The coalition government may have come and gone, and we may be used to George Osborne’s austerity plans (whether we like them … Continue reading Say hello to 2016, wave goodbye to 2015 →
- December 15, 2015
Adjudication is “regarded as a blessing” and should be conferred on all industries
Just a few weeks ago, I wrote that section 105(2) of the Construction Act 1996 should be consigned to George Orwell’s fate worse than death, Room 101. It seems that Coulson J has similar feelings, although he expressed it rather differently in round two of the dispute between Severfield (UK) Ltd and Duro Felguera UK Ltd.
- December 1, 2015
Twelve reasons why expert’s evidence was “entirely worthless”
Countless generations have sung along to the Christmas carol, The Twelve Days of Christmas, with its simple lyrics and cumulative effect. We all know how it goes: “On the first day of Christmas my true love sent to me a Partridge in a Pear Tree.” A new gift is added each day (turtle doves, French hens, … Continue reading Twelve reasons why expert’s evidence was “entirely worthless” →
- November 17, 2015
Bogged down in paperwork over steelwork exceptions under section 105(2)
The meaning of construction operations (in section 105(1)) and the exceptions (under section 105(2)) are one of the more difficult areas of the Construction Act 1996 to get to grips with. We may know that they are the result of lobbying back in the 1990’s, but I’ve never really understood the rationale for them and it … Continue reading Bogged down in paperwork over steelwork exceptions under section 105(2) →
- November 3, 2015
No site visit, no breach of rules of natural justice
A few weeks ago I looked at the width of an adjudicator’s discretion to determine a dispute, as outlined by Coulson J in Wycombe v Demolition v Topevent. That judgment also raised a number of other issues, which I thought I’d share with you.
- October 20, 2015
Why didn’t the contractor just adjudicate its payment dispute?
One thing that puzzled me when I was reading Gloster LJ’s judgment in Wilson and Sharp Investments v Harbour View Developments is why the contractor repeatedly threatened winding up proceedings, rather than taking the employer’s lack of payment to adjudication. We all know how that scenario should have played out and, who knows, it may have … Continue reading Why didn’t the contractor just adjudicate its payment dispute? →
- October 6, 2015
Adjudicator’s discretion to decide parties’ dispute just got wider
Not that long ago, I suggested it was great to see Coulson J back giving robust TCC judgments. Therefore, it came as no surprise to see what he had to say in Wycombe Demolition v Topevent. Some of his words are worthy of repeating at the outset. In fact, it is arguable that I should let his words … Continue reading Adjudicator’s discretion to decide parties’ dispute just got wider →
- September 22, 2015
Oral construction contracts and adjudication
It is almost four years since the amendments to the Construction Act 1996 came into force. In all that time, we haven’t seen the anticipated flurry of cases dealing with the new payment rules (although there has been handful in the last 18 months or so) or the consequences of extending the definition of construction contract through … Continue reading Oral construction contracts and adjudication →
- September 8, 2015
Chancery judge gives guidance on expert evidence
When I first started writing about experts, I wasn’t aware of how frequently the topic pops up in judgments, or the sort of issues that arise. Now it seems hardly a week goes by without a judge commenting on an expert’s good, or more often, bad behaviour or whether there is a need for an expert in … Continue reading Chancery judge gives guidance on expert evidence →
- August 25, 2015
Are we closer to an end to smash and grab adjudications?
It’s not clear whether the adjudicator in Henia Investments v Beck Interiors was dealing with a “smash and grab” adjudication, since the judgment contains so few facts about that aspect of the parties’ dispute. However, I think the case is yet another example of the tide turning against those who want to “smash and grab”, and reflects the continuing … Continue reading Are we closer to an end to smash and grab adjudications? →
- August 11, 2015
Bias and judicial recusal (again)
It has only been a few weeks since I addressed the subject of bias and judicial recusal. However, as it is the holiday season and lost luggage is part and parcel of flying (for some at least), the circumstances of Peter Smith J’s recusal in Emerald Supplies v British Airways is such that I couldn’t resist.
- July 28, 2015
The “menace that lies behind any threat to adjudicate” and section 106
Gotch and Gotch v Enelco Ltd was a feisty judgment from Edwards-Stuart J, one I’m sure that lends itself to being blogged about and oft quoted. It concerned an application for declaratory relief. Essentially, the Gotchs argued that the contractor, Enelco, had no right to refer a dispute to adjudication. They claimed the building contract had been amended to exclude … Continue reading The “menace that lies behind any threat to adjudicate” and section 106 →
- July 14, 2015
If there was no dispute then why didn’t they pay?
It may be a little old (it was handed down in March 2014), but Ramsey J’s judgment in City Basements Ltd v Nordic Construction UK Ltd is a reminder that a payment dispute crystallises when payment is not made. The party claiming payment does not have to do more to ensure there is a dispute. As … Continue reading If there was no dispute then why didn’t they pay? →
- July 7, 2015
Suggestion that email and financial documents are application for payment “defies common sense”
I don’t know about you, but I have rather missed Coulson J’s adjudication judgments over the last few years as he has been hearing cases out and about, but not so often in the TCC. I don’t really think I noticed that he’d gone, until he came back following Ramsey J’s retirement. A coincidence perhaps, … Continue reading Suggestion that email and financial documents are application for payment “defies common sense” →
- June 23, 2015
Bias and judicial recusal
It has been a while since I’ve looked at issues relating to bias and judicial recusal. This is partly because, until recently, we had lots of adjudication-related things to write about (although Jonathan does seem to have put the kibosh on that one). However, it seems these issues are still ripe for consideration in court … Continue reading Bias and judicial recusal →
- June 9, 2015
Application for payment can be late but not early
It is a long time since I’ve been involved in the administration of a construction contract, but I often get to deal with payment disputes in adjudication where there are issues with how the parties have operated the contractual payment mechanism. It is for that reason that I found Edwards-Stuart J’s judgment in Leeds City … Continue reading Application for payment can be late but not early →
- May 26, 2015
More thoughts on adjudication in Ireland
A few weeks ago I wrote about the Adjudication Society’s regional conference in Dublin that considered the introduction of statutory adjudication in Ireland through the Construction Contracts Act 2013 (CCA 2013). On that occasion, I highlighted possible issues with the enforcement of an adjudicator’s decision. This time, I’m looking at a few of the other issues that came out … Continue reading More thoughts on adjudication in Ireland →
- May 19, 2015
Adjudicator’s wide discretion to set the procedure and timetable unsuccessfully challenged
Only last week I was reading Tony Bingham’s piece in Building on bullying in adjudication, then up pops a case where the judgment (given by HHJ Raeside QC) refers to bullying. I will leave you to read what Tony said in his article and make up your own mind about why parties and their representatives do … Continue reading Adjudicator’s wide discretion to set the procedure and timetable unsuccessfully challenged →
- May 5, 2015
Comparing adjudication enforcement in Ireland and England
A couple of weeks ago I attended the Adjudication Society’s regional conference in Dublin. The conference’s focus was on the Construction Contracts Act 2013 which, among other things, introduces statutory adjudication to Ireland. As some of you may recall, Jonathan went to a similar conference last year and wrote about some of the issues that … Continue reading Comparing adjudication enforcement in Ireland and England →
- April 21, 2015
No second bite of cherry as adjudicator’s decision final and binding
I have looked at the binding nature of adjudicators’ decisions previously. For example, I have considered how one adjudicator is bound by another adjudicator’s earlier decision and also looked at the concept of temporary finality. On both occasions, the focus was on section 108(3) of the Construction Act 1996 and paragraph 23(2) of the Scheme for Construction Contracts 1998. Therefore … Continue reading No second bite of cherry as adjudicator’s decision final and binding →
- April 7, 2015
Hedging your bets in adjudicator nomination doesn’t pay
Life as an adjudicator can be hard sometimes, what with all the jurisdictional challenges flying around. Questions about who we know, who we don’t know, who we’ve spoken to (or not) and who’ve we’ve done business with over the last few years. However, one thing you might think was a sure-fired bet was your appointment … Continue reading Hedging your bets in adjudicator nomination doesn’t pay →
- March 24, 2015
Adjudication “at any time” unless there is a final certificate
Those of us familiar with the JCT standard forms of contract all know that they provide for a final certificate, which becomes conclusive evidence of the matters stated in it, unless it is challenged within 28 days. Equally, those familiar with adjudication know that either party to a construction contract has a right to adjudicate … Continue reading Adjudication “at any time” unless there is a final certificate →
- March 10, 2015
“Manifest injustice” warrants partial stay of adjudication enforcement
By now, I’m sure you will have seen (or heard about) Edwards-Stuart J’s judgment in Galliford Try v Estura and will, no doubt, have formed your own view as to the implications for adjudication, both in terms of a party’s ability to start a counter adjudication following a “smash and grab” adjudication, and also with regard to … Continue reading “Manifest injustice” warrants partial stay of adjudication enforcement →
- February 24, 2015
It’s all about how you present your case before the adjudicator
In Broughton Brickwork Ltd v F Parkinson Ltd, HHJ Stephen Davies considered that an adjudicator’s failure to have regard to a particular document was not fatal and so enforced his decision. While, at first blush, it may not seem critical to a party’s case if the adjudicator overlooks a document or two from the parties’ … Continue reading It’s all about how you present your case before the adjudicator →
- February 10, 2015
Money money money or adjudicator’s fees (again)
When Lord Dyson’s judgment in PC Harrington Contractors Ltd v Systech International was published in 2012, I suspect there was a big intake of breath in the adjudication world, not just from adjudicators, but also from those involved in advising parties and the parties themselves. In deciding that an adjudicator was not entitled to his fees because … Continue reading Money money money or adjudicator’s fees (again) →
- January 20, 2015
Adjudicator entitled to payment as no breach or lack of jurisdiction
Adjudicators’ decisions are often attacked in enforcement proceedings, with the party resisting enforcement arguing that the adjudicator lacked jurisdiction or breached the rules of natural justice (or both). If those arguments are successful, not only is the adjudicator’s decision unenforceable but, following PC Harrington v Systech, the adjudicator may not be entitled to be paid … Continue reading Adjudicator entitled to payment as no breach or lack of jurisdiction →
- January 6, 2015
My 2015 wish list
It’s that time of year again when we all start looking forward and wondering what the next 12 months will hold. For the last few years, my looking forward piece seems to have focused on West Ham‘s adventures in the Premier League. At the start of last year, I was pleased to see they had … Continue reading My 2015 wish list →
- December 9, 2014
Lack of pay less notice meant “open and shut” adjudication case
I have to confess to having a small chuckle to myself when I read Edwards-Stuart J’s comments in Harding v Paice about how the third adjudication appeared to be “a model of how an adjudication should not be conducted”. This didn’t seem to be a reflection of the adjudicator, who the judge had “considerable sympathy for”, … Continue reading Lack of pay less notice meant “open and shut” adjudication case →
- November 25, 2014
When is a response not a response in adjudication proceedings?
I’m not telling you anything new when I say that it’s a funny thing, adjudication. We have a statutory process for resolving disputes in the construction industry set out in section 108 of the Construction Act and Part 1 of the Scheme for Construction Contracts 1998. Both the Act and the Scheme provide for when … Continue reading When is a response not a response in adjudication proceedings? →
- November 4, 2014
The tricky world of an adjudicator’s jurisdiction
Defining the scope of an adjudicator’s jurisdiction is at the heart of adjudication and it is the focus of many of the challenges to adjudicators’ decisions that we see in the courts. It is not a new topic to these pages either. Therefore it will come as no surprise to regular readers that I’m looking at … Continue reading The tricky world of an adjudicator’s jurisdiction →
- October 21, 2014
A good use of Part 8 in adjudication
In the long, slow days of the summer court recess, it was interesting to read Ramsey J’s judgment in Hurley Palmer Flatt v Barclays Bank plc. From my perspective as an adjudicator, the judgment demonstrates a good use of CPR Part 8 during an adjudication and, as we rarely see the Third Party Rights Act … Continue reading A good use of Part 8 in adjudication →
- September 30, 2014
Experts take it on the chin as Akenhead J’s “gloves are off” again
This post is yet another in my (not so) occasional series about expert evidence and expert witnesses. It could be called, “Is it time for some experts to throw in the towel?” Last time I looked at experts, I said that Leggatt J’s judgment in Hirtenstein v Hill Dickinson was one to read if ever you … Continue reading Experts take it on the chin as Akenhead J’s “gloves are off” again →
- September 16, 2014
NEC, notices of dissatisfaction and the Arbitration Act 1996
Regular users of the NEC3 ECC will be familiar with its dispute resolution provisions set out in Options W1 and W2, used depending on whether the contract is a “construction contract” and the Construction Act 1996 applies (W2), or it isn’t and it doesn’t (W1). Both Options provide for disputes to be referred to adjudication and include … Continue reading NEC, notices of dissatisfaction and the Arbitration Act 1996 →
- September 9, 2014
Expert evidence and kitchen sinks
Outside of renovating a kitchen, in construction circles we usually talk about kitchen sinks in the context of a claim where one of the parties has thrown everything in to it, the proverbial kitchen sink claim. In my experience, kitchen sink claims often crop up in adjudication, featuring in the law reports when the adjudicator’s decision is … Continue reading Expert evidence and kitchen sinks →
- August 19, 2014
What happens when you send without prejudice material to the adjudicator?
I’ve had a few adjudications recently where one of the parties has included a letter or document that was marked “without prejudice”. How the other party and I (as the adjudicator) have reacted is always fact dependent, but it can give rise to a number of issues.
- August 12, 2014
The reasonableness of the adjudicator’s fee
What happens when one party refuses to pay the adjudicator and challenges the reasonableness of his fees?
- July 29, 2014
Court of Session’s reminder that it’s tough to appeal an adjudicator’s decision
The astute and keen-eyed readers of this blog will have noticed the paucity of adjudication decisions coming from the TCC in recent months. They may have also noticed that Scotland’s Court of Session has fared a little bit better in the judgment stakes, giving us the odd case to write about (most recently, Jonathan looked at Miller v … Continue reading Court of Session’s reminder that it’s tough to appeal an adjudicator’s decision →
- July 15, 2014
Late submissions and split costs orders in adjudication
A couple of weeks ago I wrote about party-party costs and whether adjudicators are up to the job of dealing with the parties’ costs, if they have the power to do so. In setting out my thoughts on whether adjudicators do have the skills (and I think those with arbitrator training certainly do have), I didn’t mention some … Continue reading Late submissions and split costs orders in adjudication →
- July 1, 2014
Adjudicators determining party-party costs in adjudication
Over the last year or so, much has been written about the impact of the costs management and costs budgeting aspects of the Jackson reforms on High Court litigation. It doesn’t stop at written articles either. Whenever I go to a construction function these days, it seems to be the one topic that everyone is talking about. Everyone seems to … Continue reading Adjudicators determining party-party costs in adjudication →
- June 17, 2014
Can waiver or estoppel arguments rebut a condition precedent defence?
Over recent weeks, both Jonathan Cope and David Robertson have written about Akenhead J’s judgment in Obrascon v AG of Gibraltar. While they both looked at the condition precedent issues related to clause 20.1 of the FIDIC Conditions of Contract (in that case, the Yellow Book), Jonathan also considered the judgment’s potential impact on other … Continue reading Can waiver or estoppel arguments rebut a condition precedent defence? →
- June 10, 2014
Revisiting expert evidence again
In the last 15 months I’ve posted a blog about expert evidence on five occasions (I know, I’ve counted them). The overwhelming message from all of these posts is that the experts parties appoint could do better, either in the quality of their expert testimony, not being partisan or biased and in having the appropriate expertise … Continue reading Revisiting expert evidence again →
- May 20, 2014
Memory… our fickle friend?
I was reading Tony Bingham’s piece on witness evidence in Building the other day and I was sufficiently intrigued by his reference to Leggatt J’s comments in Gestmin v Credit Suisse and another, that I felt compelled to dig out the judgment and read it for myself (or, as least, the relevant bits). Although the case … Continue reading Memory… our fickle friend? →
- May 6, 2014
A referring party that “would never give up”
It is quite common for an adjudicator to be appointed multiple times, either by the same parties on one project, or by one party on different projects. This may arise for a number of reasons, including the nature of the parties’ dispute, whether the individual is named in the contract as the adjudicator or because the referring party thinks highly of that … Continue reading A referring party that “would never give up” →
- April 22, 2014
Notice of adjudication held to be valid despite “defects”
I must admit that when I read Carr J’s judgment in University of Brighton v Dovehouse Interiors, I was a little surprised at her findings on the various service points that the University had raised to challenge enforcement of the adjudicator’s decision. However, I was less surprised by the conclusion that the adjudication was commenced … Continue reading Notice of adjudication held to be valid despite “defects” →
- April 8, 2014
An appeal or just reinforcing the adjudicator’s decision?
I read the Court of Appeal of Northern Ireland’s decision in Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd recently. The appeal was brought by the Housing Executive, who thought the High Court judge was wrong in law to uphold an adjudicator’s decision (which found in favour of Healthy Buildings). The Court of Appeal did … Continue reading An appeal or just reinforcing the adjudicator’s decision? →
- March 18, 2014
Hot-tubbing of factual witnesses – now there’s an idea!
I’ve never been involved in hot-tubbing as an expert witness, but I have put witnesses through the hot tub when they have appeared before me in adjudication proceedings. I didn’t call it hot-tubbing, we used the term “hot-seating”, but the result was the same.
- March 4, 2014
Multiple contracts or one contract that was varied? Adjudicators beware of the difference
I have been writing this column long enough to have covered many important cases over the years, although it was Jonathan who looked at Akenhead J’s judgment in Air Design v Deerglen back in early 2009. That case saw the Fiona Trust principles applied to an adjudication clause. It also started the line of authorities dealing … Continue reading Multiple contracts or one contract that was varied? Adjudicators beware of the difference →
- February 18, 2014
Is adjudication cost-effective for small value disputes?
There has been a debate in adjudication circles for some time now about how cost effective adjudication is for small value claims. After the Court of Appeal’s judgment in Walker Construction (UK) Ltd v Quayside Homes Ltd, I anticipate that the debate may gain momentum again.
- February 11, 2014
Injunction in adjudication, where does that leave the adjudicator’s fees?
When I was reading Edwards-Stuart J’s judgment in Twintec v Volkerfitzpatrick, I was a little bit surprised to see he’d granted an interim injunction to prevent the referring party (Volkerfitzpatrick) from continuing with its adjudication while he decided whether the adjudicator was properly appointed. On the facts, the final injunction was less of a surprise. Perhaps what was more … Continue reading Injunction in adjudication, where does that leave the adjudicator’s fees? →
- January 28, 2014
Adjudicator using own knowledge and experience, acceptable behaviour or a frolic?
The principle that an adjudicator should not go off on a frolic of his own is clear and well established. If he does, he breaches the rules of natural justice and his decision will not be enforced by the courts. Many examples exist in the law reports of what happens when the adjudicator veers away … Continue reading Adjudicator using own knowledge and experience, acceptable behaviour or a frolic? →
- January 21, 2014
Experts – here we go again or do we?
I identified an increased awareness by experts of their duties and obligations as one of the items in my 2014 “wish list“. I did this because of the sheer number of recent cases where the court was critical of the experts and their evidence. For example, last year I commented on: HHJ Mackie QC’s judgment in Proton … Continue reading Experts – here we go again or do we? →
- January 8, 2014
My 2014 wish list
It’s that time of year again when we start looking forward and wondering what the next 12 months will hold. From all of the items that I wished for last year, one was to see West Ham secure the lease on the Olympic stadium. I was particularly pleased to see that one come to fruition. … Continue reading My 2014 wish list →
- December 10, 2013
Solicitor’s undertaking to ensure payment of adjudicator’s fees
I thought two interesting points were made right at the end of the judgment in JG Walker v Priory Homes. Firstly about whether it was appropriate to order indemnity costs of the enforcement application and, secondly, the solicitor’s undertaking to pay the adjudicator’s fees.
- November 19, 2013
Clarity is key in an adjudicator’s decision
It was Johnny Nash who sang about seeing clearly back in the early 1970’s. In Roe Brickwork Ltd v Wates Construction Ltd, that wasn’t something Wates thought could be said about the adjudicator’s decision in its dispute with a sub-contractor. Before Edwards-Stuart J, Wates argued that the adjudicator’s decision should not be enforced because it lacked … Continue reading Clarity is key in an adjudicator’s decision →
- November 12, 2013
Experts who seek to defend the indefensible
The court’s criticism of the parties’ expert witnesses seems to continue unabated. It is a topic I have looked at many times, not least back in August when I discussed Akenhead J’s judgment in National Museums and Galleries on Merseyside v AEW and PIHL/Galliford Try. In all the criticism leveled at the experts, one particular … Continue reading Experts who seek to defend the indefensible →
- October 29, 2013
Should the adjudicator be told about declarations during an adjudication?
Whether an adjudicator should be told about court declarations under CPR Part 8 during an adjudication was the jump out point for me when I read Edwards-Stuart J’s judgment in Glendalough Associated SA v Harris Calnan Construction Co Ltd. However, in contrast to the same judge’s decision in McGee v Gear last year, this time he did want … Continue reading Should the adjudicator be told about declarations during an adjudication? →
- October 15, 2013
An adjudicator dealing with all defences, or not
Establishing whether an adjudicator had done his job properly is a difficult area and one that has troubled the courts on many occasions over the years. We have all read judgments following enforcement proceedings where one party alleged the adjudicator breached the rules of natural justice because he failed to consider a particular issue or … Continue reading An adjudicator dealing with all defences, or not →
- October 1, 2013
Should I stay or should I pay now? Adjudication and insolvency
I may have tweaked a line from The Clash’s, “Should I stay or should I go now“, but applying for a stay of execution in adjudication enforcement proceedings seems to be on the increase, at least so far as reported judgments are concerned. I can think of at least four cases since May, and my take … Continue reading Should I stay or should I pay now? Adjudication and insolvency →
- September 10, 2013
So, a collateral warranty is a construction contract after all
I’m not sure I was expecting to give a blog post that title but, following Akenhead J’s judgment at the end of August in Parkwood v Laing O’Rourke, it seems that is now the case. At least, that is the case for a collateral warranty worded in the way the parties’ warranty was worded.
- September 3, 2013
Bias revisited – keeping your own counsel
Back in June, I wrote about Peter Smith J’s judgment in Mengiste v Endowment Fund for the Rehabilitation of Tigray and others. The post was all about a recusal application and, at the time, I drew parallels between the allegations of judicial bias in Mengiste and a challenge to an adjudicator’s jurisdiction. Mengiste has recently been before the Court … Continue reading Bias revisited – keeping your own counsel →
- August 20, 2013
You often know when you start reading a judgment how the case is going to turn out by the way the judge describes the parties’ expert witnesses and witnesses of fact. I got that feeling recently when reading Akenhead J’s judgment in National Museums and Galleries on Merseyside v AEW and PIHL/Galliford Try. Even if the … Continue reading Experts again →
- August 6, 2013
The unpredictable nature of adjudication and enforcement proceedings
We are all familiar with the principle in English law of precedent and its binding or persuasive nature (depending on where the precedent comes from). We are equally familiar with the court’s ability to distinguish one judgment from another, to not follow previous authority or precedent and to rely on the individual facts to do … Continue reading The unpredictable nature of adjudication and enforcement proceedings →
- July 30, 2013
Walter Lilly seems to be flavour of the month in submissions
I don’t know if Mackay is to Scottish names what Smith is to English names, Jones is to Welsh names and Molloy is to Irish names, but it seems to have featured fairly regularly in the posts on this blog over the last year or so. It was in July last year that we had Akenhead J’s seminal … Continue reading Walter Lilly seems to be flavour of the month in submissions →
- July 9, 2013
Stays of execution, approbation and reprobation, and the binding nature of an adjudicator’s decision
It sometimes feels like issues in case law are a bit like buses. You don’t see one for ages and then several come along all together. I got that feeling recently when I read the judgments in Westshield v Buckingham and FG Skerritt v Caledonian Building Systems. For very different reasons, in both cases the … Continue reading Stays of execution, approbation and reprobation, and the binding nature of an adjudicator’s decision →
- July 2, 2013
Food for thought when acting as an expert
It never ceases to amaze me how many reported judgments there are where the expert evidence of one of the parties is criticised by the judge. My last post referred to the views of Peter Smith J in Mengiste, and his conclusion that: “In this case, there was no doubt that [the claimant’s expert] was … Continue reading Food for thought when acting as an expert →
- June 18, 2013
Contrasting a recusal application with challenges to an adjudicator’s jurisdiction
Earlier this year, I raised the possibility of adjudicator-bias in the context of adjudicator’s being paid (or not) following Lord Dyson’s judgment in PC Harrington Contractors Ltd v Systech International Ltd. What I wondered was whether it was arguable (or at least would be argued by some) that being paid at the end of the … Continue reading Contrasting a recusal application with challenges to an adjudicator’s jurisdiction →
- June 4, 2013
Arbitrators, adjudicators and judges’ reasons
A couple of years ago I wrote about reasons in an adjudicator’s decision (it wasn’t the first time or the last time the topic has come up). At the time I referred to Ian Dury’s song, Reasons to be Cheerful (part 3). That song came to mind again recently, this time in the context of the judgment … Continue reading Arbitrators, adjudicators and judges’ reasons →
- May 28, 2013
Using your own knowledge and experience in adjudication
It was Alice Cooper that sang: “‘Cause you are damned if you do Damned if you don’t Damned if you will Damned if you won’t” If you are wondering what an earth I’m talking about, take a look at Ramsey J’s judgment in Farrelly v Byrne Brothers.
- May 14, 2013
What parts of the adjudicator’s decision can you challenge, if any?
In Willmott Dixon Housing Ltd v Newlon Housing Trust, an issue arose over the service of the referral notices on the adjudicator and the responding party (Newlon) in two adjudications that had been referred on the same day, to the same adjudicator, Mr John Riches. It transpired that Newlon did not receive the referral notices until … Continue reading What parts of the adjudicator’s decision can you challenge, if any? →
- April 30, 2013
An appeal of the adjudicator’s decision, or was it?
The TCC’s judgment in RWE Npower Renewables Ltd v J N Bentley Ltd got me thinking about the possibility of “appealing” an adjudicator’s decision. While we all accept that adjudicators’ decisions are of a temporary or interim binding nature, in practice, court or arbitration proceedings rarely follow on from the majority of decisions. That means … Continue reading An appeal of the adjudicator’s decision, or was it? →
- April 16, 2013
Serving a statement of case in adjudication
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 … Continue reading Serving a statement of case in adjudication →
- April 9, 2013
Should an adjudicator’s decision be published?
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 … Continue reading Should an adjudicator’s decision be published? →
- March 26, 2013
When an expert breaches his professional code of conduct
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 … Continue reading When an expert breaches his professional code of conduct →
- March 19, 2013
Arbitrating after adjudication
I’m sure most people are familiar with the concept of temporary finality. Coulson J describes it as “the essence of the adjudication process”. He goes on to explain that it is one of the principal reasons why the courts endeavour to enforce adjudicators’ decisions, provided they have answered the right question (paragraph 3.100, Coulson on Construction … Continue reading Arbitrating after adjudication →
- February 26, 2013
Adjudicator bias after PC Harrington v Systech
The most obvious consequences of Lord Dyson’s judgment in PC Harrington v Systech (non-payment of adjudicators for non-enforceable decisions where there has been a breach of the rules of natural justice) have been written about and discussed at length over the three months since the Court of Appeal handed down its judgment. However, one topic … Continue reading Adjudicator bias after PC Harrington v Systech →
- February 19, 2013
One adjudicator’s decision binds another adjudicator
Everyone involved in adjudication proceeds on the understanding that an earlier adjudicator’s decision binds a subsequent adjudicator. However, I wonder how often people look to see where that principle comes from. It was an issue before Akenhead J in Arcadis v May and Baker recently.
- February 5, 2013
What happens when you don’t want the same adjudicator again?
I saw an interesting point tucked away in the middle of paragraph 10 of Akenhead J’s judgment in Arcadis v May and Baker. I will leave others to focus on the alleged breaches of the rules of natural justice (including that the adjudicator took a restrictive view of his own jurisdiction, went off on a … Continue reading What happens when you don’t want the same adjudicator again? →
- January 22, 2013
Differences between a judge and an adjudicator’s reasons
As a topic, adjudicators’ reasons have appeared on this page fairly regularly over the years, most often to do with one party alleging that there has been a breach of the rules of natural justice because the reasoning provided is inadequate. Conversely, we seldom see parties arguing before the court on enforcement that the adjudicator wrote too much, … Continue reading Differences between a judge and an adjudicator’s reasons →
- January 15, 2013
Wednesbury unreasonableness test in adjudication
Hardly a month goes by where I don’t have an English or Scottish judgment to consider on this blog, where one party is seeking to enforce an adjudicator’s decision, the other party is resisting, in its defence raising a jurisdictional challenge or arguing there has been some breach or other of the rules of natural justice. … Continue reading Wednesbury unreasonableness test in adjudication →
- January 2, 2013
My 2013 wish list
It’s that time of year again when we start looking forward and wondering what the next 12 months will hold. From all of the items that I wished for last year, one was to see West Ham promoted to the top flight. I was particularly pleased to see that one come to fruition, with the … Continue reading My 2013 wish list →
- December 4, 2012
Adjudicator can’t change his mind in his later decision
Back in September, I wrote about set-off against an adjudicator’s decision following two TCC judgments: Squibb Group v Vertase FLI Ltd and Beck Interiors v Classic. It seems the parties in the first case are still arguing over time and money, and have been back before the court (Vertase FLI Ltd v Squibb Group). This … Continue reading Adjudicator can’t change his mind in his later decision →
- November 27, 2012
Liability for adjudicators’ fees, a postscript
In the month since Lord Dyson’s judgment in PC Harrington v Systech was published, and I wrote a blog about it, there has been one subject on the lips of most adjudicators and those involved in adjudication (and it isn’t West Brom holding on to a Champion’s League place in the Premiership). Instead, it is the … Continue reading Liability for adjudicators’ fees, a postscript →
- November 6, 2012
Adjudicating under a letter of intent
Whether the Construction Act 1996 applied to letters of intent was an issue that troubled practitioners and the courts for a number of years. From the various cases that considered this issue, the answer seemed to be that each case would turn on its own facts (that classic lawyerly phrase!), but the Act would apply if … Continue reading Adjudicating under a letter of intent →
- October 26, 2012
New Master of the Rolls arrives with a bang
Just the other day, I was reading Tony Bingham’s piece in Building about the return of Lord Dyson to the Court of Appeal as the Master of the Rolls. Tony ended his piece as follows: “I am excited by the ‘re-appearance’ of this judge. What does he say now about this 14-year old dispute management … Continue reading New Master of the Rolls arrives with a bang →
- October 23, 2012
Tactical use of counterclaims in adjudication
A recent post of mine considered two separate Coulson J judgments where the paying party attempted to set-off claims after the adjudicator’s decision had been issued. But what happens if the responding party raises a set-off (or counterclaim) during the adjudication process?
- October 9, 2012
Adjudicator wrong on jurisdiction, again
I’ve lost track of how many times, over the last four years, that I’ve said it is tough being an adjudicator, given the pressures that are on us. With that in mind, it doesn’t surprise me when I read a judgment, only to discover the adjudicator did something that means his decision is not enforced. In the … Continue reading Adjudicator wrong on jurisdiction, again →
- October 2, 2012
Endless submissions in adjudication
I smiled to myself when I read John Redmond’s recent piece in Building magazine, as I know only too well the scenario he describes when talking about parties insisting on having the last word. In John’s example, the parties leave the adjudicator with just 12 hours to reach his decision after the final submission has … Continue reading Endless submissions in adjudication →
- September 18, 2012
Adjudicator’s reasons were not open to challenge
In Pihl UK Ltd v Ramboll UK Ltd, the adequacy of the adjudicator’s reasons was among the issues that Lord Malcolm had to consider. It isn’t an issue that comes before the court very often and, as with previous judgments both north and south of the border, Lord Malcolm held that the adjudicator had given adequate reasons, there was no … Continue reading Adjudicator’s reasons were not open to challenge →
- September 4, 2012
Revisiting set-off against an adjudicator’s decision
Earlier this year, I wrote about set-off in adjudication, particularly set-off and withholding notices following the judgment in Working Environments v Greencoat. More recently in both Squibb Group v Vertase FLI Ltd and Beck Interiors v Classic, Coulson J in the TCC looked at the question of set-off against an adjudicator’s decision. Perhaps unsurprisingly, on both … Continue reading Revisiting set-off against an adjudicator’s decision →
- August 21, 2012
One expert witness, two separate clients and two judgments
Two recent judgments caught my eye and, in particular, the references to an expert who appeared as an expert witness in both judgments. For those that did not notice, the expert was instructed on behalf of: The claimants, the Trustees, before HHJ Keyser QC in The Trustees of Ampleforth Abbey Trust v Turner & Townsend. The defendants, … Continue reading One expert witness, two separate clients and two judgments →
- August 14, 2012
Experts in adjudication when professional negligence claimed
I recently wrote about an expert’s role in construction disputes and, in particular, the role they play in adjudication. As I said then, there are no rules about using experts in adjudication, or protocols that cover how they should behave. An individual may be bound by guidance provided by his professional body (such as the RICS’ … Continue reading Experts in adjudication when professional negligence claimed →
- July 31, 2012
Using experts in adjudication
The SCL has recently launched a consultation on the use of experts in construction disputes. It wants to know why parties instruct experts, how parties use their experts and whether the tribunal should have a greater say in the expert’s role in the dispute. The SCL’s July newsletter suggests that the consultation aims to “provoke wide-ranging discussion” and to … Continue reading Using experts in adjudication →
- July 24, 2012
All in an adjudicator’s day’s work
As I’ve said before, it is part and parcel of acting as an adjudicator that you may, one day, find your actions being discussed in court, with one party challenging the enforcement of your decision. It hasn’t happened to me for a while, but it recently happened for the first time to my co-director, Jonathan. It’s a … Continue reading All in an adjudicator’s day’s work →
- July 17, 2012
When a party seeks declarations in an adjudication
The judgment in WW Gear v McGee Group (and Jon’s subsequent post on it) got me thinking beyond using CPR Part 8 in adjudication and more generally about the meaning of declaratory relief. In my experience, most adjudications are about money allegedly due from one party to the other and so I wondered how often a party seeks declarations from the adjudicator.
- July 3, 2012
Contracts not in writing
Following the repeal of the in writing or evidenced in writing rule in section 107 of the Construction Act 1996, the scope of the disputes referred to adjudication is changing. Adjudicators are now being faced with disputes where the parties: Have a written contract, but disagree over whether a particular term was subsequently agreed orally (like a variation). … Continue reading Contracts not in writing →
- June 26, 2012
Another one bites the dust
I haven’t used a song reference on the blog for a long time, but Queen’s Another one bites the dust seems apt in the circumstances after the latest in a long line of high-profile company insolvencies in the construction sector. This one, reported at the end of last week, affects the Doyle Group.
- June 12, 2012
Whatever next for adjudication enforcement?
I really thought we’d seen everything that adjudication could throw up, with all the legal twists and turns of the last 14 years, and then along comes another judgment to catch us all off-guard. While this case may only affect practitioners in Scotland, I think it is still worth mentioning, if only for the surprise … Continue reading Whatever next for adjudication enforcement? →
- May 22, 2012
When the adjudicator gets it right
So often over the last few years I’ve found myself commenting on judgments where the adjudicator has done something wrong, whether that is a breach of the rules of natural justice or some other procedural error that has rendered his decision unenforceable. Therefore, I have rather enjoyed reading two recent judgments where, for a change, it seems … Continue reading When the adjudicator gets it right →
- May 15, 2012
Withholding notices and adjudicators’ decisions
Last week I wrote about the severance points in Working Environments v Greencoat, but I think the withholding notice points that arise from Akenhead J’s judgment are equally interesting. As I’m sure everyone is familiar with section 111 of the Construction Act 1996 and the requirements of a withholding notice, I’m not going to set them … Continue reading Withholding notices and adjudicators’ decisions →
- May 8, 2012
Severing adjudicators’ decisions
It may have been a long time coming, but it seems the courts have finally severed an adjudicator’s decision (I’m conveniently ignoring the judgment in Geoffrey Osborne v Atkins Rail, as I don’t think that is quite the same thing). In Working Environments v Greencoat, Akenhead J had to decide whether the adjudicator had jurisdiction to … Continue reading Severing adjudicators’ decisions →
- May 1, 2012
What if…? Could the adjudicator’s decision have been different?
It is probably fair to say that adjudication favours the referring party. After all, the referring party can spend as much (or as little) time as it wants preparing its claim, collating evidence, proofing witnesses and getting its expert evidence in place. On the other hand, the responding party is up against the clock from … Continue reading What if…? Could the adjudicator’s decision have been different? →
- April 17, 2012
Construction Act 1996 amendments six months on
I realised the other day that it was a little over six months since the amendments to the Construction Act 1996 came into force. I don’t know about you, but it only feels like five minutes since we were reading about the amendments and how they were going to impact on construction contracts and those involved … Continue reading Construction Act 1996 amendments six months on →
- April 3, 2012
The vexed question of adjudicators’ fees (part 2)
In my post, The vexed question of adjudicators fees, I discussed ways that the adjudicator and the parties could manage the adjudication process to keep costs down. That post sets out the background to this issue and refers to the Adjudication Society panel debate, Adjudicator’s fees and the costs of adjudication – over the top?, which … Continue reading The vexed question of adjudicators’ fees (part 2) →
- March 20, 2012
The vexed question of adjudicators fees
As far as I’m aware, during the years of debate over amendments to the Construction Act 1996, when it came to costs, the focus of most peoples’ attention was on getting rid of contract clauses requiring the referring party to pay both parties’ costs (so-called Tolent clauses). I don’t really recall that much time devoted to what … Continue reading The vexed question of adjudicators fees →
- March 13, 2012
Are people arbitrating more?
Jonathan’s last two posts have looked at a few aspects of arbitration, not least the fact that many of the skills we learn as adjudicators are highly useful when it comes to resolving disputes in other ways, especially as an arbitrator. As someone primarily involved in resolving disputes via adjudication, I’m all too familiar with the … Continue reading Are people arbitrating more? →
- February 21, 2012
Why should you adjudicate?
It was way back in May 1998 that statutory adjudication first became a reality in the UK. Back then, I suspect everyone wondered what would become of what was a new way of resolving construction disputes. Almost 14 years on, adjudication has become the construction industry’s method of choice for resolving disputes large and small. … Continue reading Why should you adjudicate? →
- February 14, 2012
Adjudication “torpedoed” by adjudicator’s frolic
A project that finished late, with issues over the final account caused, in part, by delays, and with the parties arguing over who was liable for those delays (unsurprisingly, weather was one of the reasons cited, as was asbestos removal). So far, this sounds like many other construction disputes. However, the contract in Herbosh-Kiere Marine Contractors Ltd … Continue reading Adjudication “torpedoed” by adjudicator’s frolic →
- January 31, 2012
Phoning a friend in adjudication
The phrase “I’ll phone-a-friend” may have started off as a lifeline in the television quiz show, Who wants to be a millionaire?, when people couldn’t answer a question, or were unsure as to the correct answer, but it has recently taken on a whole new meaning in the world of adjudication. If you are not … Continue reading Phoning a friend in adjudication →
- January 24, 2012
Forum shopping in adjudication
My last post looked at Jackson LJ’s Court of Appeal judgment on adjudicator bias in Lanes v Galliford Try. I had been wondering whether to address the “forum shopping” point when I saw PLC’s comment appear on my post. That, coupled with the fact that I’ve recently been approached to act in a matter where … Continue reading Forum shopping in adjudication →
- January 10, 2012
Court of Appeal decides adjudicator not biased after all
Last summer people were talking about HHJ Waksman QC’s judgment in Lanes v Galliford Try, not least because it looked to mark the end of adjudicators giving the parties their provisional view of the case they were being asked to decide. However, it seems that we don’t need to be so worried after all, as Jackson … Continue reading Court of Appeal decides adjudicator not biased after all →
- January 3, 2012
My 2012 wish-list
It’s that time of year again, when everyone starts looking forwards (or backwards) and starts making lists of things that they’d like to see (or not see) happen over the next 12 months or so. Not wanting to be left out, here’s my list. I appreciate not all of these will be achieved in 2012, … Continue reading My 2012 wish-list →
- December 13, 2011
Claiming interest in adjudication after PPL v Corinthian
Earlier this year I looked at claiming interest in adjudication proceedings under the Late Payment of Commercial (Interest) Act 1998, in particular the exercise of my discretion under section 5. Recently the TCC was asked (in Partner Projects v Corinthian Nominees) a similar question about whether an adjudicator had jurisdiction to award interest under the … Continue reading Claiming interest in adjudication after PPL v Corinthian →
- November 29, 2011
Regular readers of this column will note that I have, on numerous occasions over the last three years, set out my views on an adjudicator’s actions (whether in terms of what they have or have not done, or have or have not decided). Well this post is no different. Just a few weeks ago I wrote about why I … Continue reading Adjudicators’ decisions →
- November 15, 2011
Horses for courses in adjudication
Last week, I commented on the importance of the parties ensuring their dispute is in a safe pair of hands. At the time, I was alluding to the importance of getting a competent adjudicator, who knows what he is doing and will not let the parties down (by which I mean, having an enforceable decision). However, … Continue reading Horses for courses in adjudication →
- November 8, 2011
Is it fair that adjudicators are paid even when we get it wrong?
I’m sure there will be a few people out that suggesting that “it’s not fair” that adjudicators should get paid, even if they screw up when making their decision, leaving the parties with something that is unenforceable and, frankly, worthless. I am of course talking about Akenhead J’s judgment in Systech v PC Harrington.
- November 1, 2011
Bias comes in all shapes and forms
My last post was all about unconscious bias, derived from an alleged relationship between the arbitrator and party representatives. It got me thinking about other types of bias that may be alleged, especially in adjudication where you have a modest number of companies adjudicating, with an even smaller number of party representatives and adjudicators.
- October 11, 2011
Common sense applied to “unconscious bias” meaning
I have written about bias on several occasions, including to discuss Edwards-Stuart J’s judgment in Fileturn v Royal Garden Hotel last summer. On that occasion, the issue before the court was whether there was bias because of an alleged pre-existing relationship between the adjudicator and Fileturn’s representative in the adjudication. At the time, I wrote that I was … Continue reading Common sense applied to “unconscious bias” meaning →
- September 27, 2011
Writing the adjudicator’s decision
The Scheme for Construction Contracts 1998 does not include any guidance for the adjudicator on how he should set out his decision, albeit it sets out lots of detail about his jurisdiction and the things he can do in the conduct of the adjudication. The form of the decision is left very much to the individual, … Continue reading Writing the adjudicator’s decision →
- September 20, 2011
The meaning of “dispute”
The meaning of “dispute” in section 108 of the Construction Act 1996 is not something that often comes before the courts. After all, everyone knows that if a party refers more than one dispute to adjudication, the adjudicator will not have jurisdiction (unless the parties have agreed otherwise). However, when the issue does arise, it is … Continue reading The meaning of “dispute” →
- September 13, 2011
Acting as an expert determiner
Expert determination is a funny old process. I occasionally get involved, doing something with my time other than adjudicating (or training for triathlons). It’s the same with arbitration or mediation. In some ways, expert determination has many parallels with adjudication: it’s quick, there are limited submissions and the parties rights are determined. However, the overriding difference … Continue reading Acting as an expert determiner →
- September 6, 2011
Using my own knowledge and experience in adjudication
Sometimes I’m glad that I don’t have many years’ experience in civil engineering like Dr Robert Hunter in Carillion v SP Power or Mr George Ross in SGL Carbon Fibres Ltd v RBG Ltd. If I did, it may just make being an adjudicator all the more difficult since I may find it harder to draw … Continue reading Using my own knowledge and experience in adjudication →
- August 30, 2011
Should adjudicators act judicially?
A few weeks ago I read about a talk by Lord Hamilton, the president of the Scottish Court of Session, on adjudicator’s acting judicially and something called the Statement of Principles of Judicial Ethics for the Scottish Judiciary (see Tony Bingham, Building, 1 July 2011). Tony made the talk sound interesting so I googled it … Continue reading Should adjudicators act judicially? →
- August 16, 2011
Requesting more time after the riots
Last week I received a request from the solicitors for one of the parties in an adjudication to have more time to serve a submission. What made this request stand out was the reasons given, “because of the riots”. It isn’t a common reason, I’m pleased to say. Of itself, a request for more time is not … Continue reading Requesting more time after the riots →
- August 9, 2011
Assessing the evidence and using your own judgment
As I said previously, when I read Edwards-Stuart J’s judgment in Hyder v Carillion, two things struck me: The court confirming that it is the decision of the adjudicator that is binding, not his reasoning. The question an adjudicator should ask himself as to whether he should share or put his approach or interpretation to … Continue reading Assessing the evidence and using your own judgment →
- August 2, 2011
It’s all in the adjudicator’s decision, or is it?
When I read Edwards-Stuart J’s judgment in Hyder v Carillion, two things struck me: The court saying that it is the decision of the adjudicator that is binding, not his reasoning. The question an adjudicator should ask himself as to whether he should share or put his approach or interpretation to the parties? This post … Continue reading It’s all in the adjudicator’s decision, or is it? →
- July 19, 2011
Scheme amendments published. Was it worth the wait?
It seems a long time since I wrote about the suggested amendments to the Scheme for Construction Contracts 1998 in England. It probably feels a long time because it was 15 months ago. Over the last week or so the English, Welsh and Scottish governments have all published their amendments to the Scheme and the Scottish … Continue reading Scheme amendments published. Was it worth the wait? →
- July 12, 2011
Apparent bias. Is this the end of preliminary views documents?
HHJ Waksman QC’s judgment in Lanes v Galliford Try looks set to change adjudication practice. It isn’t often we get a TCC judgment that I can say, hand on heart, will potentially impact on some adjudicators’ approach to decision making as much as this one is likely to.
- June 28, 2011
When the adjudicator gets it wrong
I recently read a paper by Edwards-Stuart J, published by the SCL. He called it “When the adjudicator gets it horribly wrong” and discussed what options, such as CPR Part 8, are available to parties when an adjudicator makes a “fundamental mistake”. Edwards-Stuart J cited three examples of adjudicator mistakes: Adopting an incorrect method of calculation. … Continue reading When the adjudicator gets it wrong →
- June 21, 2011
Where have all the adjudication enforcement cases gone?
Up until last week (Friday to be exact), it had been almost 60 days since the TCC published one of its adjudication enforcement judgments on BAILII (and I’m excluding the second Lanes Group’s judgment simply because it was published late, came out of sequence and was pretty much covered in the first judgment). 60 days … Continue reading Where have all the adjudication enforcement cases gone? →
- June 15, 2011
An adjudicator’s skills
How often do you wonder about the skills an adjudicator has and think “I bet those skills are really useful in other spheres of dispute resolving”? I imagine most people don’t give much thought to my question and I can see why that may be. However, I don’t think it has always been this way. Once … Continue reading An adjudicator’s skills →
- June 7, 2011
Are there reasons to be cheerful in an adjudicator’s decision?
I read an article recently all about who should pay for the reasons in adjudicators’ decisions. Cliff Wakefield, the author, argued that some adjudicators go too far, and write too much, and that their long-windedness costs the parties (usually the losing party) a disproportionate amount of money. He suggested that perhaps it is time that parties … Continue reading Are there reasons to be cheerful in an adjudicator’s decision? →
- May 31, 2011
Claiming interest in adjudication under Late Payments Act 1998
The adjudicator has no free-standing power to award interest and paragraph 20(c) of the Scheme for Construction Contracts 1998 (if it applies to the adjudication) does not give him one (Carillion v Devonport). The adjudicator only has power to award interest if that issue has been referred to him or the parties have agreed it falls … Continue reading Claiming interest in adjudication under Late Payments Act 1998 →
- May 17, 2011
Should an adjudicator limit the number of referrals to him?
There is an interesting article by Cliff Wakefield in the latest Construction Law Journal, “Are the users of adjudication getting a raw deal?”. Cliff discusses whether there is a decline in adjudication referrals at the present time, notwithstanding the recession (when you would expect to see more not less referrals), because the process has turned into such … Continue reading Should an adjudicator limit the number of referrals to him? →
- May 10, 2011
Who do you want as your adjudicator?
I have noticed an increase in the number of adjudications that are referred to me where I have not been nominated via an adjudicator nominating body (ANB) like the RICS, but rather, at the outset I was named in the parties’ contract as the adjudicator or agreed by the parties following a dispute arising. I … Continue reading Who do you want as your adjudicator? →
- May 3, 2011
Excluding submissions breaches rules of natural justice
The Scottish courts call it “failing to exhaust your jurisdiction”. The English courts haven’t come up with a snazzy name like that, they just say the adjudicator failed to consider submissions before him or ignored aspects of a party’s submissions. It all boils down to the parties having a fair hearing and the outcome is … Continue reading Excluding submissions breaches rules of natural justice →
- April 26, 2011
Tripping up over jurisdictional challenges
I have frequently written about adjudicators getting jurisdictional challenges round their ears. Probably too frequently for my liking and here I am again, on the same subject. This time I’ve gone north of the border. There is nothing wrong with that as the Construction Act 1996 is the same either side of the border and so … Continue reading Tripping up over jurisdictional challenges →
- April 12, 2011
Adjudicator using own knowledge and experience (again)
Last month, in Paton and another, Re Judicial Review, Lord Bannatyne enforced an adjudicator’s decision even though the adjudicator had relied on his own knowledge and experience in arriving at certain conclusions. Now the Scottish court has been asked the same question again (in SGL v RBG) but this time Lord Glennie refused to enforce the adjudicator’s … Continue reading Adjudicator using own knowledge and experience (again) →
- April 5, 2011
Adjudication Latham-style: is this how it was meant to be?
It was always about cash flow. That’s what Sir Michael Latham said (and Lord Denning before that). Cash-flow was (and remains) the “lifeblood of the industry”. Somewhere in the last 12 years the cash-flow message seems to have gotten lost in the complexity and detail of many of the construction disputes that are referred to adjudication. … Continue reading Adjudication Latham-style: is this how it was meant to be? →
- March 29, 2011
How do I decide what delayed the works?
Last week I looked at the natural justice issues that arose in the Scottish case, Paton and another, Re Judicial Review. Another aspect of Lord Ballantyne’s judgment also interested me – the evidence as to how the adjudicator decided what events were the cause of critical delay and warranted the granting of an extension of … Continue reading How do I decide what delayed the works? →
- March 22, 2011
Alleged breaches of the rules of natural justice
I seem to have written quite a few posts about cases where the adjudicator was alleged to have breached the rules of natural justice in this column over the last two years or so. That trend does not seem to be abating, as this post demonstrates, following the judgment in Paton and another, Re Judicial Review.
- March 1, 2011
Did the adjudicator ask himself the correct question?
As an adjudicator, asking yourself the correct question (even if you get the answer wrong) is one of the keys to issuing a decision that should be complied with and which the parties will be able to enforce in the TCC. Over the years, we’ve had several judgments on the point. They date back to Dyson J’s … Continue reading Did the adjudicator ask himself the correct question? →
- February 22, 2011
Should lawyers help parties in adjudication?
Ann Minogue’s article Can we be of any assistance? (Building, 21 January 2011) asked whether there is a role for lawyers in the adjudication process. She wondered whether it is time to “review the industry’s original ‘no lawyer’ position, which [she] previously supported”. Ann’s article suggests that in the run up to the Construction Act 1996 coming into … Continue reading Should lawyers help parties in adjudication? →
- February 8, 2011
No construction contract, no jurisdiction, no adjudication
Everyone knows that without a construction contract you can’t have a statutory adjudication. Everyone also knows that, absent a contractual adjudication agreement, if there isn’t a construction contract, the adjudicator doesn’t have jurisdiction and so, if he goes ahead and reaches a decision that one party refuses to honour, the court will not enforce it.
- February 1, 2011
This gun is not for hire: experts in adjudication
“This gun for hire” was a 1940’s film-noir starring Alan Ladd and Veronica Lake. It was about a hit man and an entertainer, good cops and bad guys, and revenge. Hardly a film that would immediately make you think about 21st century adjudication, or allow you to draw parallels with the process. However, I think you’d … Continue reading This gun is not for hire: experts in adjudication →
- January 18, 2011
Slip rule to the adjudicator’s rescue, again
I have referred to the slip rule in adjudication on a number of occasions, most recently following Ramsey J’s judgment in O’Donnell Developments v Build Ability. It is a handy implied term for those occasions when adjudicators make a mistake. Akenhead J’s judgment in Redwing v Wishart provides yet another example of an adjudicator getting his … Continue reading Slip rule to the adjudicator’s rescue, again →
- January 11, 2011
Reasons for the decision, or were they?
Last year I wrote about the Scottish judgment of WH Malcolm Ltd and Lady Smith’s finding that the adjudicator’s views on a particular issue (SMM7) were not part of her decision, they were just part of her reasons. Just before Christmas, Akenhead J looked at a very similar issue in Redwing v Wishart.
- January 4, 2011
What does 2011 hold for the construction industry?
Two years ago I asked the question, “Will the dawn of the new year bring any changes to the construction industry, or will it be more of the same?”. Over the last two years we have seen significant changes, with the on-going recession resulting in a number of high-profile insolvencies, the first coalition government since the war and … Continue reading What does 2011 hold for the construction industry? →
- December 21, 2010
Costs of adjudication after Tolent and Yuanda
Under section 108 of the Construction Act 1996, parties to a construction contract have the right to refer a dispute to adjudication “at any time”. Over the years, much has been written about the meaning of “at any time”, but I think its meaning is relatively clear. Liability for the costs of an adjudication is another issue that … Continue reading Costs of adjudication after Tolent and Yuanda →
- December 14, 2010
Am I biased?
The SCL recently published a paper by HHJ David Grant, which he had presented earlier this year to a bunch of arbitrator and construction law types in Derby. The paper “Some pitfalls for adjudicators to avoid”, with its self-explanatory title, continued the themes of Coulson J’s talk “The perfect adjudicator’s decision“, which was given in May … Continue reading Am I biased? →
- December 7, 2010
Who pays for an unsuccessful jurisdictional challenge?
A few weeks ago, I wrote about the timing of when adjudicator’s fees start being incurred. John Redmond commented on my piece, but one thing neither of us mentioned is which party should bear the liability for the adjudicator’s fees incurred specifically on an unsuccessful jurisdictional challenge. We can look at this question in nice, easy stages.
- November 30, 2010
Nowadays, it is common to see businesses advertising themselves as being 24/7, meaning they are open all day, every day. But are they truly 24/7 businesses, manned regardless of the time or day, or is it just a euphemism for being there when you need them, within reason?
- November 23, 2010
Reasons for an adjudicator’s decision
I’m sure most adjudicator’s would agree that reasons are part and parcel of their decisions. We may not be required to provide reasons, unless requested to do so (for example, see paragraph 22, Scheme for Construction Contracts 1998) but, in practice, when we are making findings on issues of law or fact, it is unusual … Continue reading Reasons for an adjudicator’s decision →
- November 17, 2010
At what point should an adjudicator start incurring fees?
I sometimes wonder if anyone ever gives thought to when the clock starts ticking and an adjudicator’s fees start accruing. It came up in conversation recently, particularly the question of what happens immediately after an adjudicator receives the papers in an adjudication.
- November 9, 2010
Are any disputes unsuitable for adjudication?
I was recently asked whether I think there are any construction disputes that are unsuitable for adjudication. My answer was simple: no, but…
- November 2, 2010
Interim or final and binding, what does it all mean?
Everyone involved in the construction industry is familiar with the terms “interim binding” and “final and binding”, especially when referring to the effect of a certificate. Equally, they are familiar with the idea that an adjudicator’s decision is an interim one, which can only be overturned by a court, arbitrator or by agreement. So, you can … Continue reading Interim or final and binding, what does it all mean? →
- October 26, 2010
Repeatedly appointing the same adjudicator
Last month I wrote about parties subsequently appointing an adjudicator as their expert, and the potential for the adjudicator/expert to be, or appear to be, biased. It was interesting that the post attracted two comments, with each one putting one side of the argument in a situation where the adjudicator was subsequently invited to act as a solicitor … Continue reading Repeatedly appointing the same adjudicator →
- October 19, 2010
Are quantity surveyors perfect?
It isn’t often that you see quantity surveyors caught up in an adjudication as one of the parties, although they often feature heavily in other respects (as the parties’ experts, representatives or even as the adjudicator). In fact, I am not personally aware of a claim against a quantity surveyor, although I have seen breach of … Continue reading Are quantity surveyors perfect? →
- October 12, 2010
Making enquiries of the parties to adjudication
Regular readers of my blog (and followers of PLC Construction) may be forgiven for thinking that I have a crystal ball and can see into the future, after writing last week about without prejudice, only for the very same topic to appear in a Coulson J judgment later the same day. Having discussed without prejudice last week, … Continue reading Making enquiries of the parties to adjudication →
- October 5, 2010
Offers to settle disclosed to the adjudicator
What happens if, during the adjudication, one party intentionally or accidentally discloses to the adjudicator a settlement offer made by the other party?
- September 28, 2010
Transcribing adjudication hearings: whatever next?
It may be common place for parties to arrange for a daily transcript of court proceedings to be produced, but I’ve just had first-hand experience of parties using transcribers in the adjudication hearings before me.
- September 21, 2010
To resign or not to resign: that is the question
The title may be adapted from Shakespeare’s Hamlet, but it is a question often posed in adjudication. Should the adjudicator resign when he is invited to do so? Most practitioners are familiar with the responding party inviting the adjudicator to resign, often citing jurisdictional reasons for the invitation, but what happens if it is the referring party that … Continue reading To resign or not to resign: that is the question →
- September 14, 2010
Evidence satisfying the “in writing” test in section 107(4)
Recently I wrote about “in writing” and how adjudicators deal with the issue of “is there a construction contract?”. Shortly after that blog was posted, I was appointed in a dispute where the responding party challenged my jurisdiction, arguing that there was no construction contract as there was nothing in writing. The referring party denied … Continue reading Evidence satisfying the “in writing” test in section 107(4) →
- September 7, 2010
Can an adjudicator subsequently act as a party’s expert?
The question screams bias to me. Certainly, if the question was the other way around (can a party’s expert subsequently act as an adjudicator on the same dispute), I doubt anyone would think anything other than apparent bias. But is the answer so black and white?
- August 31, 2010
Contracts “in writing” – not gone yet
Much has been written about section 107 of the Construction Act 1996 and the meaning of “in writing“, not to mention the myriad of case law on the point. In the last few years, a fair number of paragraphs have also been devoted to the changes in the LDEDC Act 2009 that, if they ever … Continue reading Contracts “in writing” – not gone yet →
- August 24, 2010
The terms of an ad-hoc adjudication
Parties are free to agree that a dispute will be referred to adjudication, even if the Construction Act 1996 does not apply to their contract or there is no contractual adjudication clause. Such ad-hoc adjudications are nothing new. As HHJ Gilliland QC said (in Nordot Engineering Services Ltd v Siemens PLC, CILL September 2001), when … Continue reading The terms of an ad-hoc adjudication →
- August 17, 2010
I declare I have jurisdiction!
I wonder what would happen if I used words such as “I declare I have jurisdiction” every time a responding party challenged my jurisdiction and invited me to consider it. I’m sure everyone is familiar with adjudicators making non-binding decisions on their own jurisdiction, but do parties really analyse the language adjudicators use when they give their … Continue reading I declare I have jurisdiction! →
- August 10, 2010
What should you include in a notice of adjudication?
Once again the TCC has been looking at the scope of the notice of adjudication and the consequences of an adjudicator’s decision to rule out parts of the evidence before him.
- August 3, 2010
Conditions precedent to claim: it’s a matter of fact
No doubt there will be considerable column inches written in the coming days (not to mention the many water-cooler discussions taking place) over the Scottish court’s latest decision in City Inn v Shepherd. I’m not surprised, as it is rare these days to see a judgment that tackles issues such as concurrent delay and extension of … Continue reading Conditions precedent to claim: it’s a matter of fact →
- July 27, 2010
Adjudicators make mistakes, occasionally
I read a nice little judgment the other day. It was by Lord Glennie in the Scottish Court of Session. One of the issues before the court was whether the adjudicator had made a number of mistakes when reviewing one of the parties’ submissions, meaning that he either exceeded his jurisdiction, failed to exhaust his … Continue reading Adjudicators make mistakes, occasionally →
- July 20, 2010
Disclosing previous involvement with the parties
It is commonplace for a potential adjudicator to get asked questions about previous involvement with the parties before he is appointed. All the nominating bodies do it. Solicitors often get involved in the process too. Sometimes the questions go further than just the parties, sometimes you get asked about firms of solicitors or specific individuals, such as the … Continue reading Disclosing previous involvement with the parties →
- July 13, 2010
When should the adjudicator deliver his decision?
I’m sure most people would say the answer to the question of “when should the adjudicator deliver his decision to the parties?” is as soon as he has reached it. Certainly, I know from experience what it is like when you don’t do that. Therefore, I was rather surprised to read the judgment in Lee v Chartered Properties, … Continue reading When should the adjudicator deliver his decision? →
- July 6, 2010
When an adjudicator fails to “exhaust his jurisdiction”
Keen followers of adjudication case law will have noticed that there are now a few cases where adjudicators have been held to have breached the rules of natural justice, or tripped-up in the exercise of their jurisdiction, because they have not considered a party’s defence or part of it. I’m thinking of cases like Quartzelec Ltd v … Continue reading When an adjudicator fails to “exhaust his jurisdiction” →
- June 29, 2010
Declaring your way around an adjudicator’s decision
In Bouygues v Dahl-Jensen, the Court of Appeal said: “Adjudicators will make mistakes. Sometimes those mistakes will be glaringly obvious and disastrous in their consequences for the losing party.” Even though the possibility of making mistakes was recognised by the Court of Appeal (and both parties, as they agreed that the adjudicator had made a mistake), the court went on … Continue reading Declaring your way around an adjudicator’s decision →
- June 21, 2010
Don’t forget your contract terms need to be in writing
Will there ever come a time when parties can stop arguing over whether all of their contract terms are in writing? Some may argue that this time will come (maybe next year) when the amendments to the Construction Act 1996 come into force. That’s because part of the proposed amendments do away with the section 107 … Continue reading Don’t forget your contract terms need to be in writing →
- June 16, 2010
Liar liar, pants on fire
This may be a children’s playground taunt, most commonly associated with accusations of dishonesty (it is actually paraphrased from William Blake’s poem, “The Liar”) but, in recent months, the courts have dealt with a number of cases where one party has alleged the other is guilty of fraud (or something akin to fraud).
- June 8, 2010
Addressing jurisdiction challenges early and clearly
Last month I wrote about rule 6 of Coulson J’s “seven golden rules of adjudication“; his road-map for maximising a party’s chances of having an adjudicator’s decision enforced. This week I thought I would concentrate on rule 2, which I think also merits a comment.
- June 1, 2010
It’s probably easier to split hair than it is to split an adjudicator’s decision. Discuss.
The title sounds like an exam question, but is there any truth in the statement? Since 2008 and the decision in Cantillon v Urvasco, the TCC has been considering the knotty problem of what to do with an adjudicator’s decision when part of the decision is unenforceable for some reason or other. Long gone are … Continue reading It’s probably easier to split hair than it is to split an adjudicator’s decision. Discuss. →
- May 25, 2010
When is a bank holiday not a bank holiday?
A funny thing happened to me recently. I was asked to consider whether a day was in fact a bank holiday and should be excluded from the calculation of when my decision was due.
- May 18, 2010
When the adjudication timetable creeps
Like most adjudicators, over the years I have had more than one of my decisions scrutinised by the courts. Therefore, I was as interested as the next adjudicator to find out what Coulson J was going to say about the “perfect adjudicator’s decision” when he spoke at the SCL meeting last week.
- May 11, 2010
Alarm bells often ring in adjudication
Many people are familiar with the Pink Floyd song, Time, and its opening passage of clocks chiming and alarms ringing. Alarm bells often ring in adjudication as well.
- May 4, 2010
The interim-binding nature of an adjudicator’s decision
Cast your mind back to 1996. I’m not thinking about football and England hosting the European Championship, but rather when what became the Construction Act 1996 was being debated in Parliament. One of the issues which troubled the House of Lords was the extent to which an adjudicator’s decision would be binding; should it be … Continue reading The interim-binding nature of an adjudicator’s decision →
- April 26, 2010
Multi-party disputes post-Yuanda. Are you confused too?
Unless you have been trapped overseas by the volcanic eruption in Iceland for the last week or so, you will have seen the furore that Edwards-Stuart J’s judgment in Yuanda v WW Gear has caused and the column inches that have been written about it. Last week I discussed the possibility of an end to Tolent clauses, but another aspect … Continue reading Multi-party disputes post-Yuanda. Are you confused too? →
- April 19, 2010
Is this the end for Tolent clauses?
It doesn’t seem that many weeks since I was writing about Edwards-Stuart J’s decisions in the TCC on adjudication enforcement. Just last week, he gave a landmark decision in Yuanda v WW Gear. This case has received a lot of coverage and, having read the judgment, I can see why.
- April 13, 2010
What is included within the scope of an adjudication?
A dispute was referred to me recently that involved an alleged repudiatory breach of contract and an alleged wrongful suspension of work. I had to decide whether these matters, which the contractor argued were central to the dispute (and the parties’ resultant entitlements), were within the scope of what had been referred to adjudication and therefore fell within my … Continue reading What is included within the scope of an adjudication? →
- April 6, 2010
Are the draft amendments to the Scheme a damp squib?
The draft amendments to the Scheme for Construction Contracts 1998 were published last week. Although they have been a long time coming, having now read them, I’m not sure it’s been worth the wait. They are, in my view, a “damp squib“.
- March 30, 2010
Is there a duty of confidentiality in adjudication?
I went to hear Sir Vivian Ramsey speak last week at the Worshipful Company of Arbitrators‘ Annual Master’s Lecture. His talk was called “Open secrets: the concept of confidentiality in dispute resolution”. He focused on the concepts of privacy and confidentiality in arbitration, mediation and the courts, and only mentioned adjudication briefly. Sir Vivian’s talk got me thinking about whether … Continue reading Is there a duty of confidentiality in adjudication? →
- March 23, 2010
Injunctions to stop adjudications; whatever next?
Edwards-Stuart J seems to be making waves in the world of adjudication enforcement since his appointment to the TCC last year. First he severed an adjudicator’s decision, then he appeared to introduce a threshold test into applications to stay enforcement proceedings. Now he has granted an injunction, restraining three companies from pursuing three adjudications that … Continue reading Injunctions to stop adjudications; whatever next? →
- March 16, 2010
When does my jurisdiction begin?
Such an easy question to ask, but how easy is it to answer? It seems to me that there is no straightforward answer. An adjudicator is expected to investigate his own jurisdiction when the notice of adjudication is served. It is accepted that he should resign if he concludes he has no jurisdiction to deal … Continue reading When does my jurisdiction begin? →
- March 10, 2010
Should I take notice of late submissions?
We have recently had two TCC judgments where the court has appeared to be sympathetic to the difficulties that adjudicators face with late submissions in adjudication. In both cases, the responding party alleged that the adjudicator had breached the rules of natural justice by either ignoring or not taking sufficient notice of its submissions. In … Continue reading Should I take notice of late submissions? →
- March 2, 2010
No contract “in writing”? That’s OK says the adjudicator, I’ll carry on
The keenness of responding parties (and sometimes referring parties) to raise jurisdictional challenges about every little (and big) thing is, perhaps, an understandable part of adjudication. It often seems as though parties raise these challenges regardless of whether they believe the challenge has any merit, and irrespective of the stage that the adjudication has reached. Some challenges are … Continue reading No contract “in writing”? That’s OK says the adjudicator, I’ll carry on →
- February 24, 2010
What does “final and conclusive” under paragraph 20(a) of the Scheme mean?
Paragraph 20 of the Scheme for Construction Contracts states that an adjudicator “shall decide the matters in dispute”. The adjudicator may also take into account “any other matters” that are within the scope of the adjudication or are matters “under the contract”, which he considers are “necessarily connected with the dispute”. This extends, at paragraph 20(a), to opening … Continue reading What does “final and conclusive” under paragraph 20(a) of the Scheme mean? →
- February 16, 2010
The adjudicator’s jurisdiction: when “substance and jurisdiction” overlap
I’m not telling you anything new when I say that the adjudicator’s jurisdiction lies at the heart of every adjudication. It is also fairly obvious that if the adjudicator has no jurisdiction to determine the dispute referred to him, ultimately, the parties will waste both their time and money as one party will refuse to pay … Continue reading The adjudicator’s jurisdiction: when “substance and jurisdiction” overlap →
- February 9, 2010
Nomination of the adjudicator by an ANB
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).
- February 2, 2010
An adjudicator’s use of evidence and natural justice
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 … Continue reading An adjudicator’s use of evidence and natural justice →
- January 27, 2010
Sometimes it is tough being an adjudicator
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 … Continue reading Sometimes it is tough being an adjudicator →
- January 18, 2010
Adjudicator can review without prejudice material
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?
- January 12, 2010
Evidence, rules of natural justice and the adjudicator’s discretion
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 … Continue reading Evidence, rules of natural justice and the adjudicator’s discretion →
- January 4, 2010
Not slipping-up on the slip rule
For many months now, we have all been discussing the changes the amendments to the Construction Act 1996 will have on various aspects of adjudication. Most commentators have focused on three things: an end to contract conditions that require one party to pay for the adjudication, regardless of the outcome; the adjudicator’s ability to direct payment of his fees; … Continue reading Not slipping-up on the slip rule →
- December 22, 2009
A day in the life of…
This week sees the start of the Christmas/new year 2-week shut down on construction sites up and down the country. I suspect lots of construction professionals are not so lucky as those employed on-site. Everyone is familiar with the ambush scenario in adjudication, especially at holiday time. The courts may be critical (see Coulson J’s … Continue reading A day in the life of… →
- December 16, 2009
The adjudicator, challenging jurisdiction and rule 4.90 of the Insolvency Rules
It’s not always easy being an adjudicator. It sometimes feels like you are damned if you do, and damned if you don’t. Ask Mr Shawyer, the poor chap who came in for rather a lot of harsh words from Couslon J last week (in Enterprise v McFadden). In Coulson J’s eyes, he was damned because … Continue reading The adjudicator, challenging jurisdiction and rule 4.90 of the Insolvency Rules →
- December 8, 2009
Drafting the Notice of Adjudication
The recent Adjudication Society event focused on nominating adjudicators. It was a group discussion in the style of “Question Time“, with a number of nominating bodies represented (TeCSA, CEDR, ICE, RICS, IDRS). The discussion was very interesting but, unfortunately, for those who did not attend, the Chatham House Rule applies, and so I can’t tell … Continue reading Drafting the Notice of Adjudication →
- December 1, 2009
Is adjudication always suitable for resolving a dispute?
I was recently involved in a case that came before HHJ Seymour QC in the Queen’s Bench division of the High Court. Rather than acting as an adjudicator and having my decision challenged on enforcement, I was acting as a joint expert for the parties. It was unusual to be on the other side of the … Continue reading Is adjudication always suitable for resolving a dispute? →
- November 24, 2009
Should the adjudicator split his costs decision by issue?
I was reading Akenhead J’s decision in Allied v Paradigm and, aside from the issue of whether the adjudicator had jurisdiction (was there one dispute – termination – or two disputes – termination and damages), one comment in particular caught my eye.
- November 17, 2009
Status of an adjudicator’s decision
Nowadays parties take for granted that an adjudicator’s decision is enforceable (subject to valid natural justice and jurisdictional challenges), but rarely do parties give thought to the status of the decision.
- November 10, 2009
It’s go, go, go as the LDEDC Bill gets the green light
Or is it?? In reality, it may be more of a crawl, since the draft Scheme hasn’t even been published yet and the Government is talking about an 18 month consultation period on that. In that time, at the very least, we will have a change of government and, most likely, a different party at the … Continue reading It’s go, go, go as the LDEDC Bill gets the green light →
- November 4, 2009
Ambiguity in the adjudicator’s decision
Earlier this year, I wrote about why the adjudicator should avoid idiosyncratic language in his decision. Just last week, the adjudicator’s choice of language was before the TCC again in ROK Building v Celtic Composting. This time, the court was being asked to decide whether the adjudicator was being: directive, that is, requiring the responding party to … Continue reading Ambiguity in the adjudicator’s decision →
- October 27, 2009
Expert determination and adjudication: an adjudicator’s view
I’ve read Shy Jackson’s post this week, which throws out some interesting ideas on adjudication, expert determination and construction dispute resolution.
- October 20, 2009
Using expert evidence in adjudication
Last week, I touched on whether documents should be ‘disclosed’ in adjudication. One aspect of my post looked at expert evidence, so here are some further thoughts on experts in adjudication…
- October 13, 2009
Can (and should) an adjudicator ask for a document to be provided to him?
I read the recent judgment in Balfour Beatty v Shepherd and some of the issues the adjudicator faced struck a chord.
- September 25, 2009
“At any time”: what does it mean?
Earlier this year I wrote about what “at any time” means, in the context of a Scottish decision, but do you ever wonder what it actually means? I think its ordinary meaning is self-explanatory but I put the phrase into Wikipedia to see what would come up. I was surprised that I didn’t get any … Continue reading “At any time”: what does it mean? →
- September 18, 2009
Resigning part way through an adjudication
I recently resigned on day 27 of an adjudication (you may recall that adjudication under the Construction Act 1996 is supposed to be a 28-day process). You may be wondering why I resigned so late in the day.
- September 11, 2009
Appointing the nominated adjudicator under TeCSA adjudication rules
The appointment of the adjudicator was in the news earlier this year in Bovis Lend Lease v Cofely Engineering, when the court had to consider what the correct procedure for nominating an adjudicator was under the sub-contract.
- September 4, 2009
So much to do, so little time (in adjudication)
Edward Davies has written a blog post about time, and the balance lawyers have to strike between giving their advice in the timescale required by the client, and also ensuring that they take sufficient time to ensure that that advice is correct. In an adjudication context, as an adjudicator, time is the most challenging aspect … Continue reading So much to do, so little time (in adjudication) →
- August 28, 2009
Adjudicators’ decisions on fees
A number of recent cases have looked, in part, at adjudicators’ decisions over liability for their fees and the parties’ costs.
- August 24, 2009
The adjudicator should avoid idiosyncratic language in his decision
The principle that, even if the adjudicator makes an error of law or fact, the decision will be enforced, is well established. Equally, parties are familiar with the slip rule that allows the adjudicator to correct mistakes after the decision has been sent out. But what happens when the adjudicator’s choice of language makes the … Continue reading The adjudicator should avoid idiosyncratic language in his decision →
- August 7, 2009
My jurisdiction was wider than I thought!
From time to time I find myself referred to in TCC judgments. This is part and parcel of acting as an adjudicator. While this hasn’t happened for a while, this week, it has happened twice. In shooting circles, that is known as a “brace”, but I’m not a shooting man!
- July 31, 2009
Can you waive your right to adjudicate “at any time”?
Most people would think the answer to this question is “no”. Me too. However, I saw an interesting case report by McGrigors LLP recently, which suggests not everyone thinks the answer is “no”.
- July 24, 2009
July round-up: what’s happened so far in 2009?
At the beginning of the year I wrote about some of the things I’d like to see in 2009. Just over half way through the year, I thought it was time to review that list, to see where we are.
- July 17, 2009
Adjudication – your flexible friend
Adjudication can be a very flexible process, despite the prescriptive nature of the Construction Act 1996 and the Scheme for Construction Contracts 1998. Provided both parties agree, the timetable can be adapted to suit the parties and, in some instances, the adjudicator. This flexibility can apply to any aspect of the process, including the conduct of … Continue reading Adjudication – your flexible friend →
- July 10, 2009
One nil to the sub-contractor
The third party insolvency exception to pay-when-paid clauses is a contraversial one. Many will say that is a shame that the Government did not take more notice of the industry and removed this exception when it published its proposed amendments to the Construction Act 1996 at the end of last year.
- July 3, 2009
Primus v Pompey: the adjudicator’s failure to consult
My heart sank when I read the judgment in Primus v Pompey. It’s a case that all adjudicators should read and take note of.
- June 26, 2009
Adjudication, cash flow and insolvency
Cash flow is so often called the “life blood” of the construction industry and we are all familiar with a party’s right to adjudicate “at any time” to keep the cash flowing, or so the theory goes.
- June 19, 2009
Do you have a construction contract?
“Do you have a construction contract?” Unsurprisingly, this often-asked question is the starting point for deciding whether a party has a right to refer a dispute to adjudication. If one party is a residential occupier, there can only be an adjudication if the parties have a contractual right to refer a dispute to adjudication. There can only … Continue reading Do you have a construction contract? →
- June 15, 2009
Mediators, adjudicators and confidentiality
Parties usually think of mediation and think of a confidential, without prejudice process. They are right to do so. Rarely is either party likely to want to look behind the settlement agreement reached during a mediation. The recent case of Farm Assist Limited v The Secretary of State for the Environment, Food and Rural Affairs … Continue reading Mediators, adjudicators and confidentiality →
- June 9, 2009
Who will be the adjudicator?
Last week I wrote about Bovis v Cofely, looking at whether the sixth adjudicator should have resigned. Other aspects of Coulson J’s judgment also caught my eye.
- June 2, 2009
Should the adjudicator resign?
Whether the adjudicator should resign when invited by one party to do so is very much dependent on the facts of the particular situation. I read with considerable interest the judgment in Bovis Lend Lease Ltd v Cofely Engineering Services  EWHC 1120 (TCC) and wondered what I would do if I found myself in the … Continue reading Should the adjudicator resign? →
- May 27, 2009
What happens when you ask the adjudicator for guidance?
I should have realised that as soon as I suggested that the TCC appeared to have gone quiet, we’d get an adjudication enforcement decision. Good old Sir Peter!
- May 15, 2009
Are parties paying-up rather than challenging adjudicators’ decisions?
Is it just me, or is anyone else wondering what has happened to all those enforcement proceedings in the TCC, which we got so used to reading about? You may recall that there was a flurry of activity at the end of last year and at the start of this year, but in recent weeks, … Continue reading Are parties paying-up rather than challenging adjudicators’ decisions? →
- May 8, 2009
Claiming interest in adjudication
The issue used to be whether the adjudicator had jurisdiction to award interest under the Scheme for Construction Contracts. There were conflicting interpretations as to whether an adjudicator had a statutory standalone power to award interest (like a judge or arbitrator) or whether he could only award interest if a right existed.
- May 1, 2009
Adjudicating PPP/PFI contracts
Everyone who is familiar with the Construction Act 1996 knows (or should know by now), that certain contracts are excluded from its payment and adjudication provisions. This includes the top tier contract between the local authority (usually) and the project company in PPP/PFI deals.
- April 24, 2009
Taking the initiative in adjudication
If the Scheme for Construction Contracts governs an adjudication, the adjudicator is given certain powers, including the power to take the initiative in ascertaining the facts and the law necessary to determine the dispute.
- April 17, 2009
Thinking of withholding payment? Don’t forget to serve a withholding notice
In HS Works v Enterprise, the court enforced an adjudicator’s decision that decided, among other things, that the absence of a valid withholding notice was fatal to the contractor’s attempt to withhold monies from the sub-contractor’s final account.
- April 14, 2009
Using “without prejudice” material in adjudication
My blog on what to do if a party seeks to rely on an earlier adjudicator’s decision on an unrelated project reminded me of another relatively common issue: what should an adjudicator do when one party includes without prejudice material in its submissions and the other party objects?
- April 3, 2009
Determining whether the adjudicator is biased
I recently wrote about being an adjudicator at a mock adjudication hosted by Collyer Bristow. The dispute was between a contractor, Q (the referring party) and the employer, L (the responding party). Q claimed L owed it £400,000, which L denied. This post looks at the allegation of bias, that is: was there a risk of … Continue reading Determining whether the adjudicator is biased →
- March 27, 2009
Residential occupiers, second homes and adjudication
It is rare to see an individual (or a couple, as in Shaw v Massey) arguing the residential occupier exclusion (section 106 of the Construction Act 1996) applies to their contract. This is because nowadays all the commonly used standard form contracts contain or incorporate an adjudication clause. Therefore, even if an individual is, strictly speaking, a residential … Continue reading Residential occupiers, second homes and adjudication →
- March 16, 2009
Adjudicators have their reasons
The TCC’s recent judgment in Thermal Energy Construction Ltd v AE&E Lentjes UK Ltd must have given some adjudicators a bit of a fright. The TCC refused to enforce an adjudicator’s decision despite previous case law (upheld in the Court of Appeal) that an adjudicator’s decision can only be challenged for a failure to give … Continue reading Adjudicators have their reasons →
- March 9, 2009
No contract “in writing”: an adjudicator’s view
I was the adjudicator at a mock adjudication hosted by Collyer Bristow recently. The dispute was between a contractor, Q (the referring party) and the employer, L (the responding party). Q claimed L owed it £400,000, which L denied. L argued: There was no contract “in writing“, so the dispute could not be referred to … Continue reading No contract “in writing”: an adjudicator’s view →
- February 27, 2009
When will the adjudicator get paid?
Like many adjudicators, in the current climate I am concerned that parties may go bust and I will not get paid. I have already experienced one or both parties going bust after the decision has been delivered, and I haven’t been paid. Being entitled to a few pence in the pound in the insolvency doesn’t … Continue reading When will the adjudicator get paid? →
- February 23, 2009
Do deficiencies matter?
I have recently read Ramsey J’s judgments in OSC Building Services v Interior Dimensions and PT Building Services v ROK Build in adjudication enforcement proceedings and I was intrigued by what I read. I think we may be witnessing a move away from the court’s strict interpretation of what constitutes “the dispute” referred to adjudication.
- February 10, 2009
TCC busy with two novel Part 8 applications in as many weeks
It is only the beginning of February and already there is a new trend developing in the TCC: parties are making Part 8 applications during an adjudication. This is something I welcome (it was on my wish list for 2009).
- February 2, 2009
Unusually, the TCC refuses to enforce an adjudicator’s decision
The topic for discussion at the last Arbitration Society lunch (which I chaired) was the TCC’s decision in Quartzelec Limited v Honeywell Control Systems Limited  EWHC 3315 (TCC). This case raised a number of interesting points:
- January 12, 2009
No rules of evidence in adjudication
I was recently asked about the admissibility of a previous adjudicator’s decision in a later adjudication, where the parties were the same, the facts were similar but the project was entirely different. This was a new one for me.
- January 5, 2009
“What a year for a new year”
Will the dawn of the new year bring any changes to the construction industry, or will it be more of the same?
- December 22, 2008
Christmas cheer for adjudicators
Mr Justice Coulson’s judgment in Westwood Structural Services Ltd v Blyth Wood Park Management Company Ltd caught my eye last week. The judgment may not rock the legal world to its foundations, but it is uplifting reading for all those involved in adjudication. There are two reasons for this:
- December 17, 2008
Enforcing an adjudicator’s decision: more of the same, or was it?
Coulson J’s judgment last week in Balfour Beatty v Modus Corovest (about the Hounds Hill Shopping Centre in Blackpool) was surprising in a number of ways:
- December 8, 2008
Construction Act 1996 changes: a second coming
Like many, I was keen to see what the Government would do once the consultation period for the Construction Contracts Bill ended earlier this year. After all, they didn’t draft a Bill the industry wanted the first time around – it was universally criticised – and were said to be having a second attempt at … Continue reading Construction Act 1996 changes: a second coming →
- December 2, 2008
“I wasted time, and now doth time waste me”
The comments made by Coulson J in Jacobs UK Ltd v Skidmore Owings & Merrill LLP (that relate to a summary judgment application in the Technology and Construction Court) struck a chord with me in relation to adjudication.
- November 24, 2008
Oral agreements and trivial terms: what does it all mean?
Mr Justice Akenhead has recently refused an application for summary judgment to enforce an adjudicator’s decision, partly on the basis that the contract was not “in writing”. At first blush the case appears unremarkable, but the judgment is worth reading as it provides important guidance on what “in writing” actually means.
- October 24, 2008
Serial adjudications: a blight on the adjudication landscape, or an inevitable consequence of the process?
If the challenge is made early in the proceedings, before the responding party has incurred substantial costs, then I am more likely to resign. The recent cases of Birmingham City Council v Paddison Construction Ltd  EWHC 2254 and Benfield Construction Ltd v Trudson (Hatton) Ltd  EWHC 2333(see PLC’s update), (and the previous case of HG Construction … Continue reading Serial adjudications: a blight on the adjudication landscape, or an inevitable consequence of the process? →
- October 24, 2008
How to stay on the right side of the adjudicator
We adjudicators are only human, although sometimes the parties act in a manner that suggests they have forgotten. I would advise the parties to avoid a number of practices or behaviours during an adjudication: