Posts by Matt Molloy

  • Experts again

    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

  • 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

  • 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.

  • 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.

  • 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

  • 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

  • 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

  • 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

  • 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?

  • 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.

  • 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.

  • 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

  • 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.

  • 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.

  • Experts again

    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

  • 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.

  • 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

  • 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.

  • 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

  • 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?

  • 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

  • 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.

  • 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

  • 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.

  • 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

  • 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?

  • 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?

  • 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

  • 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

  • Adjudicators’ decisions

    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

  • 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.

  • 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.

  • 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”

  • 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

  • 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.

  • 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

  • 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

  • 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.

  • 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.

  • 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.

  • 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?

  • 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.

  • Adjudicating 24/7

    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?

  • 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.

  • 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?

  • 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.

  • 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?

  • 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!

  • 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). 

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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“.

  • 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).

  • 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?

  • 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

  • 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…

  • 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

  • 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.

  • 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.

  • 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…

  • 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.

  • 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.

  • 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 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.

  • 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.

  • 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.

  • 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.

  • 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 [2009] EWHC 1120 (TCC) and wondered what I would do if I found myself in the … Continue reading Should the adjudicator resign?

  • 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.

  • 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.

  • 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.

  • 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?

  • 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

  • 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.

  • 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.

  • 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:

  • “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.

  • 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.

  • 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: