Practical Law

• by Matt Molloy
• Director

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Last year I wrote about the judgment in Nicholas James Care Homes Ltd v Liberty Homes (Kent) Ltd, where O’Farrell J continued an interim freezing injunction that had been granted a month or so earlier. As I said at the time, while I wouldn’t ordinarily be interested in an injunction application, I wrote about it … Continue reading On account payment wasn’t exercising an adjudicator’s lien →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

I can’t say that I recall Dyson LJ’s judgment in Connex South Eastern Ltd v MJ Building Services Group being handed down back in 2005 but I do know it is the case that told us that the phrase “at any time” means exactly that. It’s like Ronseal’s famous phrase, “Does exactly what it says on the tin”. … Continue reading Limits on when you can adjudicate →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Happy new year everyone. Once again I am reflecting on what I’d like to see and, looking at my 2022 list, I think I could probably include all of them again apart from three: Clarity regarding starting a true value adjudication when you haven’t satisfied a smash and grab obligation (because that one has been … Continue reading Hello to 2023 →

• by Matt Molloy
• Director

Back in July, I wrote about the judgment in Metropolitan Borough Council of Sefton v Allenbuild Ltd, where HHJ Hodge QC in the TCC in Manchester enforced an adjudicator’s decision and, in so doing, rejected an application under section 9 of the Arbitration Act 1996 for a stay pending referral of the dispute to arbitration. At the time, I suggested … Continue reading Adjudication enforcement proceedings not stayed to arbitration →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

At the end of last year, Jonathan discussed the Court of Session’s judgment in D McLaughlin & Sons Ltd v East Ayrshire Council, where Lord Clark looked at the conclusiveness of a final certificate under a Scottish Standard Building Contract with Quantities, 2011 Edition (SSBC, 2011 Edition). That case has popped up in the law reports again, this time in the … Continue reading How final is a final certificate? →

• by Matt Molloy
• Director

I’ve been looking at the Law Commission’s consultation on proposed changes to the Arbitration Act 1996 (AA 1996). The AA 1996 has been around some 25 years, which is about the same length of time that I’ve been resolving disputes. In fact, the very first case I worked on was a pre-Act arbitration that had started … Continue reading Thoughts on the consultation amending the Arbitration Act 1996 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Have you had chance to read RIBA’s Construction Contracts and Law Report 2022, which was published at the end of July? If not, I’d recommend taking a peek. It contains some interesting stuff, a snapshot of the state of our industry as we emerged from a post-Brexit, post-COVID world. It also has a great cover (I’ve always … Continue reading Construction contracts and disputes survey reveals “traditional” industry →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

When I was looking at the list of TCC cases to find something to write about this week, my first thought was Adrian Williamson QC’s judgment in FTH Ltd v Varis Developments Ltd, where he refused to grant summary judgment to enforce an adjudicator’s decision due to the claimant’s company voluntary administration (CVA). Unfortunately for … Continue reading Applying to stay adjudication enforcement proceedings to arbitration →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Sometimes it feels that, as an adjudicator, you are damned if you do and are also damned if you don’t. In this case – Liverpool CC v Vital Infrastructure Asset Management (Viam) Ltd (In Administration) – it was both what the adjudicator did do and what he didn’t do that led the judge to issue a declaration … Continue reading Adjudicator reaches decision in “procedurally unjust manner” so not enforced →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Since the TCC in London started transferring some of its adjudication enforcement cases to the County Court, we haven’t had as much to write about on this blog. While there may be benefits to having the more routine cases dealt with there, rather than in the High Court, it does leave Jonathan and I with … Continue reading Adjudication enforcement background to successful injunction application →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

In my view, this is an interesting question and, until earlier this month, not one we’d seen addressed in the law reports before (at least, not as far as I recall). Without cheating and looking at the judgment in Bexheat Ltd v Essex Services Group Ltd, I wonder how many of you would answer the … Continue reading Does a true value adjudication bind a subsequent smash and grab adjudicator? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

It’s a few years since Jonathan wrote about the conflicts avoidance panel (CAP) that TfL and RICS developed for dealing with disputes on London Underground station redevelopments, including redevelopments as a consequence of Crossrail, to effectively ensure that disputes could be “nipped in the bud” at an early stage. It’s hard to know how successful the CAP … Continue reading Conflict avoidance in 2022 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Last year I wrote about the judgment in Davies & Davies Associates Ltd v Steve Ward Services (UK) Ltd, where Roger ter Haar QC (sitting as a deputy High Court judge) granted summary judgment on a claim for payment of an adjudicator’s fees and expenses arising from an adjudication in which the adjudicator resigned prior to issuing … Continue reading Lack of jurisdiction entitled adjudicator to resign →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

It might have taken a while before we started to see enforcement decisions in Ireland’s High Court arising from adjudications under the Construction Contracts Act 2013 but they now seem to be on a roll, with the latest (John Paul Construction Ltd v Tipperary Co-Operative Creamery Ltd) handed down just a few weeks ago. This … Continue reading Ireland enforces another adjudicator’s decision →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

I can’t believe it’s that time of year again. It doesn’t seem like five minutes since I was writing a post looking forward to 2021. Where did 2021 go or, for that matter, 2020 and countless other years before then? As I noted back in 2020, this is the third decade in which I’ve blogged for Practical Law … Continue reading Welcome to 2022 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Many years ago I wrote a blog on how an adjudicator should avoid using idiosyncratic language in their decision. I had in mind a particular judgment (Vision Homes Ltd v Lancsville Construction Ltd), where one party was arguing the decision was void and of no effect because it was vague and ambiguous. It was the judge (Christopher … Continue reading Be careful what you write, it may not remain confidential →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Back in February 2021, I wrote a blog entitled, You must adjudicate before you can arbitrate, where I discussed Lady Wolffe’s judgment in Fraserburgh Harbour Commissioners v McLaughlin & Harvey Ltd. At the time, I said that if parties have a tiered dispute resolution clause in their contract, one thing they shouldn’t do is jump in at … Continue reading Scottish court reminds us that you must adjudicate first under NEC3 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Those of you who’ve been following this blog will be aware that I’ve written about adjudication in Ireland multiple times, and had been waiting for what I’d call a “proper” enforcement judgment to discuss. That arrived in the summer with the judgment in Principal Construction Ltd v Beneavin Contractors Ltd. We now have another one, this … Continue reading Can’t simply “read across” UK case law into Irish adjudication enforcement →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Beyond the Scottish courts’ adjudication enforcement procedure, I’m not particularly familiar with the processes they follow. Therefore, I was interested to see the judgment in Graeme W Cheyne (Builders) Ltd v Michael Duthie Wilson, which involved the Sheriff Appeal Court (SAC) reviewing a sheriff’s decision to enforce an adjudicator’s decision. I’m not sure I’d heard of the … Continue reading What happens when the contract administrator resigns? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Only last week, I was part of a CIArb panel discussing 25 years of adjudication or, to be more accurate, 25 years of the Construction Act 1996. As we all know, the Act really only started to bite sometime in 1998 (because it only applied to contracts entered into after 1 May 1998), but it … Continue reading Ireland finally has its Macob moment →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

It is almost four years to the day that I blogged about Ontario’s plans to introduce prompt payment and adjudication provisions to construction contracts. I can’t believe how time flies and that, not only did Ontario enact its Construction Lien Amendment Act (which amended the Construction Lien Act and introduced new prompt payment rules and adjudication to resolve payment … Continue reading Training adjudicators in Canada →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

As much as I love dispute resolving, whether that is adjudicating, arbitrating or mediating, this is not an altruistic endeavour of mine and, just like everyone else, one of the objectives is to be rewarded financially as a return on the investment of the time devoted to the process. I’m sure I’m not alone in saying … Continue reading Recovery of an adjudicator’s fees →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

I have written about adjudication in Ireland a number of times over the years and I’m continuing my infrequent series today with another look at it, this time with a focus on enforcement of an adjudicator’s decision. But first, a recap…

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Dispute boards are not that common on projects in the UK. Insofar as any of us think about it, I’m sure we’d point to the Construction Act 1996 and say it’s because of section 108 and the right for parties to a construction contract to refer a dispute to adjudication at any time. That right … Continue reading Do dispute boards and adjudication make unhappy bedfellows? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Some of us are old enough (just) to remember life before statutory adjudication was a thing, before the Construction Act 1996 was enacted and came into force. Those giddy days of the early 1990’s when the idea of responding to a notice of adjudication within a matter of days (not weeks or months or even … Continue reading Ireland’s Construction Contracts Act 2013 before the courts →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

I often wonder how much time parties spend on looking at the dispute resolution clauses in their contracts.  Before work starts they might ponder whether they want to arbitrate or litigate at the end of the day (and draft the contract accordingly), but do they really pay attention and debate the benefits of a tiered … Continue reading You must adjudicate before you can arbitrate →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

As is customary, I’m starting the year with a look at what the year may hold for construction practitioners. I did this last year too, musing then over what we should be calling the decade we’d just left as we arrived in the twenty-twenties. I also wondered what the next major event in construction law … Continue reading Welcome to 2021 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

It is eight months since I first blogged about the impact that COVID-19 was having on dispute resolution in England in a piece aptly called, Adjudicating in the shadow of coronavirus. (I don’t know why, but that title always makes me think of Gabriel Garcia Marquez’s book, Love in the time of cholera. I’ve no … Continue reading Getting to grips with online mediation →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Last time, Jonathan talked about some of the lessons he’s learned while resolving disputes remotely. I thought I’d follow that with a few thoughts on the remote training that I’ve been doing this year (for obvious reasons) on the topic of expert determination.

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Time flies when you are having fun, or so the saying goes. I think it flies whether you are having fun or not, although I’m sure we’ve all experienced those moments when it isn’t flying at all and it feels like it has stood still. As Pink Floyd famously sang, “Ticking away the moments that … Continue reading Time isn’t on your side and resolving old disputes is never easy →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

It isn’t unusual to see one party start Part 8 proceedings asking the court to determine what the parties have agreed in their contract and to grant declaratory relief to that effect. In the adjudication enforcement context, we’ve seen it multiple times. Sometimes it feels like one party is “appealing” the adjudicator’s decision, since it … Continue reading Calculating the final date for payment under a construction contract →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

A couple of weeks ago I was part of the panel at the launch event for the updated adjudication guidance notes published by the Chartered Institute of Arbitrators (CIArb) and the Adjudication Society. The other panellists were Ciaran Fahy, Susan Francombe, Kim Franklin QC and Jeremy Glover. The event was moderated by Lewis Johnston. In case you are unfamiliar with either … Continue reading Updated adjudication guidance from CIArb and the Adjudication Society →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

It’s been a while since I last wrote about experts (last August to be exact, when I looked at “The good, the bad and the ugly” of expert witnesses). However, I couldn’t let the issues that cropped up in Essex County Council v UBB Waste (Essex) Ltd go without comment. If you read the judgment or, … Continue reading Experts and conflicts of interest →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

A few weeks ago I was due to attend an event to mark the launch of the first edition of the CIC’s Low Value Disputes Model Adjudication Procedure (LVD MAP). However, like many other things this year, because of COVID-19, the event was cancelled and moved on-line instead. As a consequence, I think the launch … Continue reading The LVD MAP and summary adjudication schemes have landed →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

It is day 38 of lockdown and a month since I last blogged. Although it is arguable that not a lot has happened in that time (after all, the COVID-19 lockdown continues and our freedom is still curtailed), I wonder if we are at the beginning of a permanent shift in the way people work. … Continue reading What has lockdown taught me so far? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

I know I’m not alone in thinking that the last few weeks have been a challenge, both personally and professionally. In a little over three months the whole world has been turned upside down and all because of the 2019 novel coronavirus disease (COVID-19). Here in the UK, we are just starting week two of the … Continue reading Adjudicating in the shadow of coronavirus →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

It is almost 30 months since Jonathan wrote about BEIS’s consultation on the 2011 amendments to the Construction Act 1996. As I’m sure everyone knows, the amendments were introduced by Part 8 of the LDEDC Act 2009. A couple of months later, Jonathan followed up on his initial piece and also wrote about BEIS’s consultation on cash retentions, … Continue reading Government response to Construction Act and retentions consultations →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

As last year drew to a close, Lord Doherty handed down an adjudication enforcement judgment in Babcock Marine (Clyde) Ltd v HS Barrier Coatings Ltd, which was concerned with whether the adjudicator had failed to give reasons or failed to exhaust his jurisdiction. There was also an issue over whether there had been a material breach … Continue reading The devil may be in the detail of adjudicator appointments →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Or should that be waving goodbye to the “one-ders”, the “tweenies”, the “tensies” or simply the “tens”? I wasn’t sure what you are supposed to call the last decade and an internet search didn’t prove much help either, with various options coming up. Perhaps you have a favourite way to refer to the last decade. … Continue reading Say hello to the twenties, wave goodbye to the twenty tens →

• by Matt Molloy
• Director

We don’t see the section 106 residential occupier exemption appearing in the law reports all that often, possibly because the law surrounding its meaning is fairly well settled, particularly since Coulson J’s 2013 judgment in Westfields Construction Ltd v Lewis. Therefore, I was rather intrigued by the judgment in Howsons Ltd v Redfearn and another. It dates from the … Continue reading Is lawfulness of occupation relevant to the residential occupier test? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

A few weeks ago, I looked at Lord Doherty’s judgment in Dickie & Moore Ltd v McLeish, where I focused on the mentoring – pupil adjudicator points, and left the crystallisation of the dispute points to others. This week, I’m looking again at Lord Doherty’s judgment in Dickie & Moore Ltd v McLeish, only this time it is his … Continue reading “All for one and one for all” when it comes to severing an adjudicator’s decision →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

I recently saw a comment that someone had posted on LinkedIn asking if it was possible for the law just to stay as it is for a while, given the deluge of recent construction case law. I’m sure quite a few of us think that from time to time although, as someone with a regular blog … Continue reading Adjudicating on multiple adjudications →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Way back in the depths of time (well January 2009 to be exact), I first wrote about how I would like to see a pupillage system for budding adjudicators. At the time, I said it was to address the fact that the process is now far more complex than was envisaged when it all started. Since … Continue reading Mentoring and pupil adjudicators →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

I’m often asked why I rarely blog about what it takes to be a “good” expert witness, instead of focusing all the time on examples of “bad” expert witnesses. My answer? Because the cases containing examples of “bad” behaviour are far more bloggable than those brief sentences where the judge applauds a witness for their … Continue reading “The good, the bad and the ugly” expert witnesses →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

When it is a plant thermally treating waste. Or is it still a power plant? This was the question that Mr Jonathan Acton Davis QC had to grapple with in Engie Fabricom UK Ltd v MW High Tech Projects UK Ltd. As is often the case when it comes to the exclusions under section 105(2) … Continue reading When is a plant not a power plant? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

I had the idea of doing a piece about what parties can do when they think an adjudicator has made a mistake back in February when I saw the judgment in Northern Ireland Housing Executive v Dixons Contractors Ltd. Therefore, it is simply a coincidence that, last week, another one of my decisions was referred to in … Continue reading What happens when adjudicators make a mistake? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Picture this scenario. The parties’ contract provides that when there is a dispute, an adjudicator is to be appointed from a panel of three, which the parties have already agreed on. In the alternative, if the parties cannot agree the identity of the three panel adjudicators, they will be nominated by the President of the Chartered Institute … Continue reading What does “expert in the field of X” mean? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

You often cut a lonely figure when acting as an adjudicator. It’s not like being part of a three-party arbitral tribunal, where you have someone to discuss issues with. I suspect it is the same for a judge. Sometimes it feels like the world is against you, no matter how hard you try. At least, … Continue reading Should I recuse myself? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Lingchi, also known as known as death by a thousand cuts, was a form of torture and execution used in China. According to Wikipedia, it may not have involved as many as 1,000 cuts, that would depend on the crime, the executioner and whether the family could afford a bribe to speed up the process (and reduce the number of … Continue reading Is serial adjudication like lingchi? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

A few weeks ago I was finishing a paper on fraud, which was based on a SCL talk that I’d given a little while before. Some of you may have been there. I have to confess that it is a lot easier blogging than it is writing one of those papers: the word count is … Continue reading Reminder that it’s hard to succeed with fraud allegations in adjudication →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

The slip rule is an essential part of the adjudicator’s toolbox, for situations when a mistake has crept into our decision or, as I put it back in 2011: “It is a handy implied term for those occasions when adjudicators make a mistake.” It took on statutory form in 2011 with section 108(3A) of the Construction … Continue reading Consequential corrections are covered by adjudicator’s slip rule →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Football’s transfer window is open and the papers are full of stories about who may be leaving, who may be arriving and who hasn’t got any money to spend. Speculation is rife, but does anyone wonder what really happens behind the scenes when a footballer’s contract of employment is terminated and he goes off to … Continue reading Football transfer windows, arbitration and adjudication all in one sentence →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

Earlier this year, I wrote about how I thought it was time for some form of mentoring or shadowing scheme to be introduced to enable budding adjudicators to gain exposure to the practical and real-life issues that adjudicators experience and to be able to discuss those issues as part of their development. I referred to the … Continue reading My adjudicator mentoring scheme →

• by Matt Molloy
• Director

My last post was a birthday piece, which looked at issues surrounding adjudicators being appointed and getting paid. One area I only briefly touched upon was natural justice (think allegations of bias). There is easily enough material for a series of blogs on the topic, given the range of allegations that can be raised to … Continue reading TCC refuses to dig too deeply into adjudicator’s decision and enforces →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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! →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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” →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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” →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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) →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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! →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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” →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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” →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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) →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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.

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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” →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

 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? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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” →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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” →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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! →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Matt Molloy
• Director

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” →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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) →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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.

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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” →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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) →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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.

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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.

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Matt Molloy
• Director

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” →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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) →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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.

• by Matt Molloy
• Director

What happens when one party refuses to pay the adjudicator and challenges the reasonableness of his fees?

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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” →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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” →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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.

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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.

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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.

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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.

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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.

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

A couple of weeks ago I went to Edinburgh to give a talk to the Society of Construction Law on global claims in the wake of Walter Lilly v Mackay. However, both before and after the talk, a number of the Scottish delegates were more interested in talking about their very own Mackay case, White … Continue reading Whyte and Mackay v Blyth & Blyth: the case that keeps on giving →

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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? →

• by Jonathan Cope
• Director

One of the reasons that adjudication is so popular is the speed in which a temporarily binding decision can be obtained. However, as a result the parties can be under immense pressure to produce submissions within very limited timescales. In particular, the responding party may only have seven days to prepare a response. When you … Continue reading If I had more time, I would have written a shorter submission →

• by Matt Molloy
• Director

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 →

• by Matt Molloy
• Director

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 →

• by Jonathan Cope
• Director

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

• by Jonathan Cope
• Director

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

• by Matt Molloy
• Director

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 →