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
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
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)
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
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
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.
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!
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
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”
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).
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
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?
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
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
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”
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?
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
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
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
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
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
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
In DC Community Partnerships Ltd v Renfrewshire Council, Lord Doherty held that the adjudicator failed to exhaust his jurisdiction when he failed to deal with a set off defence (which was pretty clear cut). While that part of the judgment is what immediately jumps out at you, to my mind the really interesting part is the fact that the judge found … Continue reading You don’t need to have served a pay less notice to set off in adjudication (apparently)
Bates and others v Post Office Ltd is an interesting group litigation involving over 500 claimants. In it, Fraser J has given the parties a stern warning about why he is not going to fix hearings to take account of counsel’s availability. It got me thinking about how adjudicators should deal with the unavailability of representatives and, … Continue reading How should adjudicators deal with the unavailability of witnesses and representatives?
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)
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
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.
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
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?
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
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?
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”
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
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
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
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
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
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
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?
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
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?
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)
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
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?
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
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
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
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
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
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
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”
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
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
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
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
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
It’s been some time since we’ve blogged about a case involving allegations of breaches of the rules of natural justice against an adjudicator. However, fear not because the Outer House of the Court of Session’s judgment in Bell Building Projects Ltd v Arnold Clark Automobiles Ltd contains some juicy natural justice arguments. It’s a story of … Continue reading Scottish court rejects allegations of breaches of the rules of natural justice
It 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
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
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
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
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
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
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
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?
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?
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.
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
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
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
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.
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?
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
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
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
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
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
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
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”
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”
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”
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
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”
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
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
I wonder if you, like me, sometimes get confused by the names and numbers of the Star Wars films. For those of us born before the 80’s there were only ever three: Star Wars, The Empire Strikes Back and Return of the Jedi. However, now the first film is called Star Wars: Episode IV – … Continue reading Harding v Paice and Springall – Episode V: a case of no apparent bias
In my last blog, I looked at the potential conflict between section 108A of the Construction Act 1996 and section 5A(2A) of the Late Payment Act 1998, and concluded that the recent case of Lulu v Mulalley hasn’t provided us with a definitive answer to the question of whether a conflict exists. This week I’m … Continue reading Adjudication costs and the Late Payment of Commercial Debts (Interest) Act 1998 (Part 2)
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
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
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)
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!
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?
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
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
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
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!
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
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.
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?
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”
I acknowledge that many of you will pick me up on the first part of the title of this week’s blog. As you may know, Sir Robert Akenhead is no longer a High Court judge but he has been sitting as a judge in the TCC due to the current shortage of judges in that … Continue reading Akenhead J is back and has widened the scope of construction adjudication
There was a great deal of furore leading up to the Supreme Court’s judgment in Cavendish Square Holding BV v Talal El Makdessi and Parking Eye Ltd v Beavis, and how the legal landscape might change in distinguishing valid liquidated damages clauses from penalties. Therefore, it was with baited breath that I visited the Supreme … Continue reading Makdessi made simple, but will it have any impact on the construction industry?
We 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?
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
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
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
Back in 2011, when Jeremy Corbyn was a mere back-bencher and few of us were aware of what an emoji was, I wrote a blog on the amendments to the Construction Act 1996. The blog arose from a panel debate held by the Adjudication Society concerning the amendments to the Act’s payment provisions. Five years … Continue reading Alternative tactics to obtain payment (but only where there are no “shadowy” claims)
Coulson J’s opening remarks in Penten Group Ltd v Spartafield Ltd set the scene for what followed, and for what I am going to discuss this week – serial adjudication: “And now the wheel has turned again and the courts are grappling with the consequences of what might be termed serial adjudication. …this is a case bedevilled … Continue reading Adjudication enforcement arguments “change with the seasons”
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
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
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
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
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
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
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
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)
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?
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
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
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
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
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
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.
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
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”
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
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)
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?
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.
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)
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?
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
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
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)
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
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
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
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
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?
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
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.
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
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
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
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?
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”
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
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
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
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
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.
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
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
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
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 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
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
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.
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 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…)
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
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 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
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
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
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?
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)
I think that most of us would agree that the law concerning an adjudicator’s jurisdiction (as well as issues related to natural justice), is now fairly well established and that, given the TCC’s strong support for adjudication, judges will dismiss spurious jurisdictional and natural justice challenges. I therefore get the impression that, while such challenges are regularly put … Continue reading A useful reminder that spurious jurisdictional challenges in adjudication will fail
What have the Romans ever done for us? comes from Monty Python’s Life of Brian and was the inspiration for this post: “All right, but apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, the fresh-water system, and public health, what have the Romans ever done for us?” As I learnt from reading … Continue reading Construction contracts and construction operations looked at again
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
The importance of three little words that should not be underestimated. I am of course talking about “subject to contract” and how the failure to use them in Malcolm Charles Contracts Ltd v Crispin and another proved to be expensive for one party.
It’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
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
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
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.
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?
If you Google my name (so I am told as I obviously wouldn’t do that myself…), I’m nowhere to be seen. The first hit you get is the former lead male in the Royal Ballet (the name is where the similarities end) and an English General who took a pounding from the Scots in 1745. … Continue reading Nominating adjudicators in the wake of Eurocom v Siemens
For those of you that practise solely in England, the Inner House of the Court of Session is the Scottish equivalent of the English Court of Appeal. As we seldom see decisions related to adjudication from either court, it is therefore worthwhile taking a look at Lord Bracadale’s judgment in T Clarke v MMaxx Underfloor … Continue reading Scottish Inner House confirms the right to adjudicate at any time
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
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
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
The English language is full of phrases and idioms in everyday use. A few that spring to mind include it’s raining cats and dogs, on a wing and a prayer, horses for courses, pillar of strength and all sweetness and light. We all use them and we all understand what they mean, even if they may appear nonsensical to … Continue reading Expert determination cases are a bit like buses as two come along together
The RICS recently undertook a rigorous review of its adjudication panel, with some members leaving and a handful of high quality new members joining. On speaking to one of those new members, he commented that “this adjudication lark isn’t as easy as it looks, is it?”. Quite. One of the most difficult areas concerns jurisdiction, … Continue reading Scope of jurisdiction: Court of Appeal decides expert’s determination invalid
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
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
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
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
This post looks at the latest guidance from the Civil Justice Council, Guidance for the instruction of experts in civil claims 2014, which was published last month and takes effect this autumn. In contrast to Surveyors acting as expert witnesses, which I discussed last time and which is aimed at RICS members and applies to any form of … Continue reading Latest guidance on acting as an expert – part 2
Over the years, I have written about various guidance aimed at those working to resolve disputes. This includes RICS’ guidance on how to deal with conflicts of interest and how to be an adjudicator. Two more pieces of guidance have recently been published. This post considers Surveyors acting as expert witnesses (fourth edition), which RICS published … Continue reading Latest guidance on acting as an expert – part 1
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.
What happens when one party refuses to pay the adjudicator and challenges the reasonableness of his fees?
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
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
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
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
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
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
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?
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?
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
EM Forster may have written the classic novel, Where Angels Fear to Tread but, at this time of year, it may not be angels that have to look where they are going, but people, especially in urban areas with a gull population. If you are wondering what I’m referring to, take a look at the … Continue reading Witness evidence, memories and gull chicks
Spring may be a time for lambs to frolic in the fields but, it seems, it isn’t a time for adjudicators to frolic, at least not on this occasion. If you are wondering what an earth I’m talking about, take a look at Lord Malcolm’s judgment in Miller Construction (UK) Ltd v Building Design Partnership Ltd. This is … Continue reading Court of Session finds adjudicator didn’t go off on a frolic
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?
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?
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”
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!
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”
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
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?
Some projects seem destined to generate disputes and a composting facility commissioned by Devon County Council seems to be one of them. As far as I can tell, to date there have been nine adjudications, two hearings in the TCC and one arbitration between the Council and Celtic (the contractor), who, confusingly, is called Bioenergy Ltd in … Continue reading The composting case that’s proved to be fertile ground for disputes, but could this latest one have been avoided?
I was lucky enough to travel to Dublin a couple of weeks ago to talk at a conference about the Construction Contracts Act 2013, Ireland’s long awaited answer to the UK’s Construction Act 1996. My job was to talk about my experience of construction adjudication and how this might be relevant to adjudication in the Emerald Isle. … Continue reading Behold the Celtic adjudication tiger (almost)
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.
My title may not be a very catchy one, but with Westminster and Holyrood currently disagreeing about everything (or so it seems), it certainly is a relevant one. I have talked before about English and Scottish judges taking different approaches to issues and the Court of Appeal’s judgment in Lindum Group v Fernie is another example.
I 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
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
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.
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?
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
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?
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?
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
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
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.
Christmas is approaching and for many of us that means it’s the time when board games are dusted off and some serious competition begins. I confess that I’m more a Trivial Pursuits than Taboo man, mainly because I’m normally hopeless at guessing what other people are trying to describe, and when it’s my turn I always end … Continue reading A CVA “Get out of jail free” card for responding parties in adjudication?
I will hold my hands up and admit that I was slightly sceptical when I saw that the Chartered Institute of Arbitrators (CIArb) was intent on publishing its own dispute board rules. Why do we need another set of rules? Also, the CIArb’s stated aim of providing rules that cater not only for construction and … Continue reading CIArb dispute board rules – you decide
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
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
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
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?
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
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
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
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
It was Mick Jagger that famously sang “You can’t always get what you want”. Well Mick, I’m pleased to report that I have got what I want; a case that proves the point I was making in a recent blog. Back in July, I wrote about ABB Ltd v BAM Nuttall Ltd in which Akenhead … Continue reading Read all about it: adjudicator didn’t commit a serious breach of the rules of natural justice
The post-summer holiday construction law party season is well under way. So far I’ve been lucky enough to mix with the flamingos at Kensington roof gardens and the opera goers at Covent Garden. It was at one of these events that a couple of people, I’ll call them Jack and Jill, had a bit of … Continue reading Are adjudicators applying the “new” payment regime correctly?
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.
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
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.
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
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?
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
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
So, after many months of waiting we’ve finally got the news we had been waiting for: it’s a boy or, as one tabloid newspaper put it, “The Regal has landed”. The media has whipped the public into a frenzy and created Royal baby hysteria. Similar hysteria sometimes results in the construction law world when significant … Continue reading Read all about it: adjudicator commits serious breach of natural justice rules
It was Paul Daniels who made the phrase, “You’ll like this… not a lot, but you’ll like it” famous. Perhaps that would have been apt last week when the IMF revised its 2013 growth forecast for the UK from 0.7% to 0.9%. Not great, but it’s a start. However, there is no doubt that it … Continue reading Parent company guarantee stops stay of adjudication – now that’s magic!
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
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
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?
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
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
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
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.
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…
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?
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
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?
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
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
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?
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
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
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
For those of you that haven’t read it yet, I would urge you to read the judgment in Westfields Construction Ltd v Clive Lewis. It was an application to enforce an adjudicator’s decision, and I assure you that the rest of Coulson J’s judgment lives up to the teaser in the opening paragraph: “Although the … Continue reading Abolish section 106? I’m not so sure M’Lud…
What a brilliant hymn this is (and I’m not even Welsh…). Even if you haven’t stepped inside a church for some time, you can’t have missed its inclusion in the 2011 wedding of Prince William and Kate Middleton and the opening ceremony for last year’s London 2012 Olympic and Paralympic Games. We could all do with … Continue reading Guide me O thou great redeemer
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
Everyone involved in adjudication proceeds on the understanding that an earlier adjudicator’s decision binds a subsequent adjudicator. However, I wonder how often people look to see where that principle comes from. It was an issue before Akenhead J in Arcadis v May and Baker recently.
I thought this week that I would discuss when happens when a dispute gets out of hand. Disputes, by their very nature, can be very stressful for the parties. The outcome can affect the survival of businesses, whether people keep their jobs or even their houses. However, when crimes are involved, disputes take on a … Continue reading Fraudulent misrepresentation in construction disputes
I saw an interesting point tucked away in the middle of paragraph 10 of Akenhead J’s judgment in Arcadis v May and Baker. I will leave others to focus on the alleged breaches of the rules of natural justice (including that the adjudicator took a restrictive view of his own jurisdiction, went off on a … Continue reading What happens when you don’t want the same adjudicator again?
Last week, the Supreme Court handed down its judgment in R (Prudential plc and another). It may not have come as a surprise that the court held, by a majority of 5:2, to limit to members of the legal profession the right to claim legal advice privilege (LAP).
As a topic, adjudicators’ reasons have appeared on this page fairly regularly over the years, most often to do with one party alleging that there has been a breach of the rules of natural justice because the reasoning provided is inadequate. Conversely, we seldom see parties arguing before the court on enforcement that the adjudicator wrote too much, … Continue reading Differences between a judge and an adjudicator’s reasons
Hardly a month goes by where I don’t have an English or Scottish judgment to consider on this blog, where one party is seeking to enforce an adjudicator’s decision, the other party is resisting, in its defence raising a jurisdictional challenge or arguing there has been some breach or other of the rules of natural justice. … Continue reading Wednesbury unreasonableness test in adjudication
We all know (from bitter experience) that conferences and seminars can vary in quality. You can come away from some feeling exhausted by the breadth and depth of what you’ve learnt (for example, the recent TeCSA Adjudication conference was excellent), but others have left me wondering why I bothered making the effort to go (but I’m … Continue reading The importance of confidentiality in adjudication
It’s that time of year again when we start looking forward and wondering what the next 12 months will hold. From all of the items that I wished for last year, one was to see West Ham promoted to the top flight. I was particularly pleased to see that one come to fruition, with the … Continue reading My 2013 wish list
A few weeks ago, I wrote about the role of expert witnesses under the Dubai’s civil code. Matt has also discussed experts recently, looking at the difficulties an expert may face, depending on his client and the nature of the dispute. Given the importance of expert evidence in construction disputes and the sheer number of people … Continue reading Experts under the spotlight again
Back in September, I wrote about set-off against an adjudicator’s decision following two TCC judgments: Squibb Group v Vertase FLI Ltd and Beck Interiors v Classic. It seems the parties in the first case are still arguing over time and money, and have been back before the court (Vertase FLI Ltd v Squibb Group). This … Continue reading Adjudicator can’t change his mind in his later decision
In the month since Lord Dyson’s judgment in PC Harrington v Systech was published, and I wrote a blog about it, there has been one subject on the lips of most adjudicators and those involved in adjudication (and it isn’t West Brom holding on to a Champion’s League place in the Premiership). Instead, it is the … Continue reading Liability for adjudicators’ fees, a postscript
Akenhead J first suggested the possibility of severing an adjudicator’s decision in Cantillon v Urvasco back in 2008. However, while severance was also discussed by the TCC later that year in Quartzelec v Honeywell Control Systems, it wasn’t until earlier this year in Working Environments v Greencoat Construction that an adjudicator’s decision was actually severed. … Continue reading Severing an adjudicator’s decision Cato-style
I was recently fortunate enough to be asked to speak at a dispute resolution conference in Dubai, which was jointly organised by Dubai Land Department and RICS. On one of the days, I took part in an expert witness workshop. It was fascinating to talk to people who act as experts in the local courts: Dubai … Continue reading Educating the experts
Whether the Construction Act 1996 applied to letters of intent was an issue that troubled practitioners and the courts for a number of years. From the various cases that considered this issue, the answer seemed to be that each case would turn on its own facts (that classic lawyerly phrase!), but the Act would apply if … Continue reading Adjudicating under a letter of intent
Just the other day, I was reading Tony Bingham’s piece in Building about the return of Lord Dyson to the Court of Appeal as the Master of the Rolls. Tony ended his piece as follows: “I am excited by the ‘re-appearance’ of this judge. What does he say now about this 14-year old dispute management … Continue reading New Master of the Rolls arrives with a bang
A recent post of mine considered two separate Coulson J judgments where the paying party attempted to set-off claims after the adjudicator’s decision had been issued. But what happens if the responding party raises a set-off (or counterclaim) during the adjudication process?
In October 2011, I wrote a couple of blogs on the “simplified” Construction Act 1996 payment provisions. I concluded by saying that: “…once the questions over the meaning of some of the amendments have been resolved, I actually think that the amendments will be quite effective at maintaining cash flow.” One year on, I thought … Continue reading First 12 months of the new payment provisions
I’ve lost track of how many times, over the last four years, that I’ve said it is tough being an adjudicator, given the pressures that are on us. With that in mind, it doesn’t surprise me when I read a judgment, only to discover the adjudicator did something that means his decision is not enforced. In the … Continue reading Adjudicator wrong on jurisdiction, again
I smiled to myself when I read John Redmond’s recent piece in Building magazine, as I know only too well the scenario he describes when talking about parties insisting on having the last word. In John’s example, the parties leave the adjudicator with just 12 hours to reach his decision after the final submission has … Continue reading Endless submissions in adjudication
RICS has recently published the third edition of its guidance note, Surveyors acting as adjudicators in the construction industry. As is usual with RICS guidance concerning dispute resolution, I should declare an interest. I am chairman of the RICS Dispute Resolution Professional Group (DRPG) and the DRPG is responsible for standards concerning dispute resolution, including … Continue reading A guiding hand in adjudications…
In Pihl UK Ltd v Ramboll UK Ltd, the adequacy of the adjudicator’s reasons was among the issues that Lord Malcolm had to consider. It isn’t an issue that comes before the court very often and, as with previous judgments both north and south of the border, Lord Malcolm held that the adjudicator had given adequate reasons, there was no … Continue reading Adjudicator’s reasons were not open to challenge
I’ll let you into a secret. While I’ve no doubt that partnering contracts can forge effective working relationships, it doesn’t follow that disputes won’t arise. I know I won’t be popular with certain sectors of the construction industry for saying so, but it’s true. Indeed, earlier this year, I was the adjudicator in a dispute … Continue reading £84,540 for a chocolate mousse – that’s a bit rich…
Earlier this year, I wrote about set-off in adjudication, particularly set-off and withholding notices following the judgment in Working Environments v Greencoat. More recently in both Squibb Group v Vertase FLI Ltd and Beck Interiors v Classic, Coulson J in the TCC looked at the question of set-off against an adjudicator’s decision. Perhaps unsurprisingly, on both … Continue reading Revisiting set-off against an adjudicator’s decision
Each summer I normally spend some time updating my note on global claims. It’s not normally a particularly taxing job and, since the Scottish case of John Doyle Construction Ltd v Laing Management (Scotland) Ltd, there haven’t really been any significant developments in the law. However, this summer has been somewhat different, and my task has been significantly … Continue reading Global claims after Walter Lilly v Mackay
Two recent judgments caught my eye and, in particular, the references to an expert who appeared as an expert witness in both judgments. For those that did not notice, the expert was instructed on behalf of: The claimants, the Trustees, before HHJ Keyser QC in The Trustees of Ampleforth Abbey Trust v Turner & Townsend. The defendants, … Continue reading One expert witness, two separate clients and two judgments
I recently wrote about an expert’s role in construction disputes and, in particular, the role they play in adjudication. As I said then, there are no rules about using experts in adjudication, or protocols that cover how they should behave. An individual may be bound by guidance provided by his professional body (such as the RICS’ … Continue reading Experts in adjudication when professional negligence claimed
A few weeks ago I gave you some of my practical tips for making or defending extension of time claims in adjudication. This week I thought I’d give you some practical tips concerning money claims, by which I mean, claims for loss and expense or damages. I appreciate that it might appear that I’m “teaching grandmother to … Continue reading Back to basics – loss and expense and damages claims
The SCL has recently launched a consultation on the use of experts in construction disputes. It wants to know why parties instruct experts, how parties use their experts and whether the tribunal should have a greater say in the expert’s role in the dispute. The SCL’s July newsletter suggests that the consultation aims to “provoke wide-ranging discussion” and to … Continue reading Using experts in adjudication
As I’ve said before, it is part and parcel of acting as an adjudicator that you may, one day, find your actions being discussed in court, with one party challenging the enforcement of your decision. It hasn’t happened to me for a while, but it recently happened for the first time to my co-director, Jonathan. It’s a … Continue reading All in an adjudicator’s day’s work
The judgment in WW Gear v McGee Group (and Jon’s subsequent post on it) got me thinking beyond using CPR Part 8 in adjudication and more generally about the meaning of declaratory relief. In my experience, most adjudications are about money allegedly due from one party to the other and so I wondered how often a party seeks declarations from the adjudicator.
Anyone that swims in the pool of construction disputes will, at some point, have come across an agreement to settle a construction dispute. Lawyers will often pour over the wording in painstaking detail, arguing for the inclusion or exclusion of certain clauses. (I suspect there’s a stock list depending on whether they’re acting for the … Continue reading Perils of settling construction disputes
Following the repeal of the in writing or evidenced in writing rule in section 107 of the Construction Act 1996, the scope of the disputes referred to adjudication is changing. Adjudicators are now being faced with disputes where the parties: Have a written contract, but disagree over whether a particular term was subsequently agreed orally (like a variation). … Continue reading Contracts not in writing
I haven’t used a song reference on the blog for a long time, but Queen’s Another one bites the dust seems apt in the circumstances after the latest in a long line of high-profile company insolvencies in the construction sector. This one, reported at the end of last week, affects the Doyle Group.
I appreciate that I said in my last blog that I would follow up with practical tips concerning loss and expense claims, however since then a couple of interesting cases have emerged from the TCC so the practical tips will have to wait for another week. One is WW Gear v McGee Group, which is … Continue reading Adjudication and Part 8 – the latest instalment
I really thought we’d seen everything that adjudication could throw up, with all the legal twists and turns of the last 14 years, and then along comes another judgment to catch us all off-guard. While this case may only affect practitioners in Scotland, I think it is still worth mentioning, if only for the surprise … Continue reading Whatever next for adjudication enforcement?
At a recent conference, I was asked to sit on a panel to discuss time and money claims. Each panellist was asked to give a short talk on the subject from the perspective of our backgrounds, and I therefore gave mine from the tribunal’s perspective. Given that I only had ten minutes, I focused on practical tips … Continue reading Back to basics – extension of time claims
Picture this scenario. Your construction contract: Pre-dates the legislation changes on 1 October 2011 (in England and Wales). States that the applicable adjudication rules are the most recent rules published by, for example, the CIC, TeCSA or CEDR. My question is, when a dispute is referred to adjudication in 2012, should the adjudicator apply the … Continue reading Conundrum about which adjudication rules apply
So often over the last few years I’ve found myself commenting on judgments where the adjudicator has done something wrong, whether that is a breach of the rules of natural justice or some other procedural error that has rendered his decision unenforceable. Therefore, I have rather enjoyed reading two recent judgments where, for a change, it seems … Continue reading When the adjudicator gets it right
Last week I wrote about the severance points in Working Environments v Greencoat, but I think the withholding notice points that arise from Akenhead J’s judgment are equally interesting. As I’m sure everyone is familiar with section 111 of the Construction Act 1996 and the requirements of a withholding notice, I’m not going to set them … Continue reading Withholding notices and adjudicators’ decisions
It may have been a long time coming, but it seems the courts have finally severed an adjudicator’s decision (I’m conveniently ignoring the judgment in Geoffrey Osborne v Atkins Rail, as I don’t think that is quite the same thing). In Working Environments v Greencoat, Akenhead J had to decide whether the adjudicator had jurisdiction to … Continue reading Severing adjudicators’ decisions
It is probably fair to say that adjudication favours the referring party. After all, the referring party can spend as much (or as little) time as it wants preparing its claim, collating evidence, proofing witnesses and getting its expert evidence in place. On the other hand, the responding party is up against the clock from … Continue reading What if…? Could the adjudicator’s decision have been different?
To answer my own question, “Are dispute boards a viable means of resolving disputes in the UK?”, I’d say yes. Others may disagree, but I’ll explain why I think this.
I realised the other day that it was a little over six months since the amendments to the Construction Act 1996 came into force. I don’t know about you, but it only feels like five minutes since we were reading about the amendments and how they were going to impact on construction contracts and those involved … Continue reading Construction Act 1996 amendments six months on
In my last blog I talked about Walter Lilly & Company Ltd v Giles Mackay and DMW Developments Ltd, where Akenhead J found that advice given by claims consultants does not attract legal professional or legal advice privilege. That got me thinking about disclosure and privilege in adjudication proceedings. Disclosure requests are certainly something I’m seeing more … Continue reading Disclosure in adjudication after Walter Lilly v Mackay
In my post, The vexed question of adjudicators fees, I discussed ways that the adjudicator and the parties could manage the adjudication process to keep costs down. That post sets out the background to this issue and refers to the Adjudication Society panel debate, Adjudicator’s fees and the costs of adjudication – over the top?, which … Continue reading The vexed question of adjudicators’ fees (part 2)
I recently wrote about West Country Renovations v Mr & Mrs McDowell. While it wasn’t strictly necessary for the purposes of the case, Akenhead J produced a judgment providing guidance on the value and types of claims that the TCC in the High Court in London will deal with. Continuing with the theme of providing helpful guidance, earlier … Continue reading Claims consultants beware
As far as I’m aware, during the years of debate over amendments to the Construction Act 1996, when it came to costs, the focus of most peoples’ attention was on getting rid of contract clauses requiring the referring party to pay both parties’ costs (so-called Tolent clauses). I don’t really recall that much time devoted to what … Continue reading The vexed question of adjudicators fees
Jonathan’s last two posts have looked at a few aspects of arbitration, not least the fact that many of the skills we learn as adjudicators are highly useful when it comes to resolving disputes in other ways, especially as an arbitrator. As someone primarily involved in resolving disputes via adjudication, I’m all too familiar with the … Continue reading Are people arbitrating more?
Recently, Matt and I gave a talk to RICS members in Dubai while in the UAE on business. I’m not sure who enjoyed the evening more though, the delegates who sat through “loss and expense claims in practice“, or Matt and I listening to their stories of the disputes that arise on projects in the Arabian … Continue reading The transferable skills of the adjudicator
I tend to keep quite a close eye on BAILII to see what’s coming out of the TCC (sad, I know). Up to last week, February had been somewhat quiet, a drought in fact. However, as the month draws to a close a couple of cases have appeared (but not the rain!). One of the cases … Continue reading Adjudication or arbitration as viable alternatives to court
It was way back in May 1998 that statutory adjudication first became a reality in the UK. Back then, I suspect everyone wondered what would become of what was a new way of resolving construction disputes. Almost 14 years on, adjudication has become the construction industry’s method of choice for resolving disputes large and small. … Continue reading Why should you adjudicate?
A project that finished late, with issues over the final account caused, in part, by delays, and with the parties arguing over who was liable for those delays (unsurprisingly, weather was one of the reasons cited, as was asbestos removal). So far, this sounds like many other construction disputes. However, the contract in Herbosh-Kiere Marine Contractors Ltd … Continue reading Adjudication “torpedoed” by adjudicator’s frolic
Some of you may have seen that the RICS has published guidance on how to deal with conflicts, helpfully called Conflicts of interest. I should declare an interest at the outset (not a conflict though!). While I wasn’t an author, I am chairman of the RICS’ Dispute Resolution Professional Group (DRPG) and the DRPG is responsible for … Continue reading RICS’ conflicts guidance
The phrase “I’ll phone-a-friend” may have started off as a lifeline in the television quiz show, Who wants to be a millionaire?, when people couldn’t answer a question, or were unsure as to the correct answer, but it has recently taken on a whole new meaning in the world of adjudication. If you are not … Continue reading Phoning a friend in adjudication
My last post looked at Jackson LJ’s Court of Appeal judgment on adjudicator bias in Lanes v Galliford Try. I had been wondering whether to address the “forum shopping” point when I saw PLC’s comment appear on my post. That, coupled with the fact that I’ve recently been approached to act in a matter where … Continue reading Forum shopping in adjudication
Or should that be “The return of the pink socks”? I appreciate that many of you won’t thank me for mentioning Christmas now that the new year is upon us, but the courts provided us with some last minute reading in the week leading up to… the end of Advent. Not only did the Court … Continue reading Remember: the grounds for withholding must be valid
Last summer people were talking about HHJ Waksman QC’s judgment in Lanes v Galliford Try, not least because it looked to mark the end of adjudicators giving the parties their provisional view of the case they were being asked to decide. However, it seems that we don’t need to be so worried after all, as Jackson … Continue reading Court of Appeal decides adjudicator not biased after all
It’s that time of year again, when everyone starts looking forwards (or backwards) and starts making lists of things that they’d like to see (or not see) happen over the next 12 months or so. Not wanting to be left out, here’s my list. I appreciate not all of these will be achieved in 2012, … Continue reading My 2012 wish-list
There are 32 London boroughs (plus the City of London), but a quick review of the reported cases over the last five years shows that only one has ended up in the TCC trying to resist the enforcement of an adjudicator’s decision: Camden, and not just once. Camden’s previous trips to the TCC have not … Continue reading Party to construction contract can’t be adjudicator nominating body too!
Earlier this year I looked at claiming interest in adjudication proceedings under the Late Payment of Commercial (Interest) Act 1998, in particular the exercise of my discretion under section 5. Recently the TCC was asked (in Partner Projects v Corinthian Nominees) a similar question about whether an adjudicator had jurisdiction to award interest under the … Continue reading Claiming interest in adjudication after PPL v Corinthian
Well, Christmas is almost upon us and the television is already full of adverts of what we can look forward to watching over the festive period. As well as another heart-stopping instalment of Downton Abbey, I’m rather hoping A Christmas Carol will be on (the Muppets version obviously). Rather like Ebenezer Scrooge in the Dickens classic, … Continue reading A Christmas (adjudication) Carol
Regular readers of this column will note that I have, on numerous occasions over the last three years, set out my views on an adjudicator’s actions (whether in terms of what they have or have not done, or have or have not decided). Well this post is no different. Just a few weeks ago I wrote about why I … Continue reading Adjudicators’ decisions
Last week Matt blogged about the case of NAP v Sun-Land. He made the point that “it was clear to me that the employer’s representatives were less familiar with the adjudication process than one might like…”. While that may well have been the case, the employer’s representatives nevertheless succeeded in achieving a partial stay of the adjudicator’s … Continue reading NAP v Sun-Land: not such a bad result after all?
Last week, I commented on the importance of the parties ensuring their dispute is in a safe pair of hands. At the time, I was alluding to the importance of getting a competent adjudicator, who knows what he is doing and will not let the parties down (by which I mean, having an enforceable decision). However, … Continue reading Horses for courses in adjudication
I’m sure there will be a few people out that suggesting that “it’s not fair” that adjudicators should get paid, even if they screw up when making their decision, leaving the parties with something that is unenforceable and, frankly, worthless. I am of course talking about Akenhead J’s judgment in Systech v PC Harrington.
My last post was all about unconscious bias, derived from an alleged relationship between the arbitrator and party representatives. It got me thinking about other types of bias that may be alleged, especially in adjudication where you have a modest number of companies adjudicating, with an even smaller number of party representatives and adjudicators.
Last week I considered some of the issues that might arise from the prohibition on pay-when-certified provisions and the new payment and default payment notices. This week, in the second part of the Adjudication Society panel debate, I consider pay less notices and suspension.
In my last blog I talked about the repeal of section 107 of the Construction Act 1996 (which came into force on 1 October 2011). However, while the repeal of this section and the other amendments to the adjudication provisions are interesting, in my view, it is the changes to the payment provisions that will have … Continue reading The “simplified” Construction Act 1996 payment provisions (part 1)
I have written about bias on several occasions, including to discuss Edwards-Stuart J’s judgment in Fileturn v Royal Garden Hotel last summer. On that occasion, the issue before the court was whether there was bias because of an alleged pre-existing relationship between the adjudicator and Fileturn’s representative in the adjudication. At the time, I wrote that I was … Continue reading Common sense applied to “unconscious bias” meaning
Remember March 2004? Very few of us had a Blackberry, Katie Price and Peter Andre had recently met in the jungle, and Tony Blair was still Prime Minister. It was also the month that Gordon Brown, then Chancellor of the Exchequer, announced a review of the Construction Act 1996. Well, after seven years and what seems like … Continue reading What’s the point in writing it down?
The Scheme for Construction Contracts 1998 does not include any guidance for the adjudicator on how he should set out his decision, albeit it sets out lots of detail about his jurisdiction and the things he can do in the conduct of the adjudication. The form of the decision is left very much to the individual, … Continue reading Writing the adjudicator’s decision
The meaning of “dispute” in section 108 of the Construction Act 1996 is not something that often comes before the courts. After all, everyone knows that if a party refers more than one dispute to adjudication, the adjudicator will not have jurisdiction (unless the parties have agreed otherwise). However, when the issue does arise, it is … Continue reading The meaning of “dispute”
Expert determination is a funny old process. I occasionally get involved, doing something with my time other than adjudicating (or training for triathlons). It’s the same with arbitration or mediation. In some ways, expert determination has many parallels with adjudication: it’s quick, there are limited submissions and the parties rights are determined. However, the overriding difference … Continue reading Acting as an expert determiner
Sometimes I’m glad that I don’t have many years’ experience in civil engineering like Dr Robert Hunter in Carillion v SP Power or Mr George Ross in SGL Carbon Fibres Ltd v RBG Ltd. If I did, it may just make being an adjudicator all the more difficult since I may find it harder to draw … Continue reading Using my own knowledge and experience in adjudication
A few weeks ago I read about a talk by Lord Hamilton, the president of the Scottish Court of Session, on adjudicator’s acting judicially and something called the Statement of Principles of Judicial Ethics for the Scottish Judiciary (see Tony Bingham, Building, 1 July 2011). Tony made the talk sound interesting so I googled it … Continue reading Should adjudicators act judicially?
I don’t know about you, but I often find that the introduction to a TCC judgment sets the tone of the dispute and (I’m embarrassed to say) influences whether I read the entire judgment or simply pick out the interesting bits and then turn to the end for the result. I was certainly encouraged to … Continue reading Concurrency (and promiscuity) in the TCC
Last week I received a request from the solicitors for one of the parties in an adjudication to have more time to serve a submission. What made this request stand out was the reasons given, “because of the riots”. It isn’t a common reason, I’m pleased to say. Of itself, a request for more time is not … Continue reading Requesting more time after the riots
As I said previously, when I read Edwards-Stuart J’s judgment in Hyder v Carillion, two things struck me: The court confirming that it is the decision of the adjudicator that is binding, not his reasoning. The question an adjudicator should ask himself as to whether he should share or put his approach or interpretation to … Continue reading Assessing the evidence and using your own judgment
When I read Edwards-Stuart J’s judgment in Hyder v Carillion, two things struck me: The court saying that it is the decision of the adjudicator that is binding, not his reasoning. The question an adjudicator should ask himself as to whether he should share or put his approach or interpretation to the parties? This post … Continue reading It’s all in the adjudicator’s decision, or is it?
In adjudication there is always the potential of the losing party who is, probably, liable for some if not all of the adjudicator’s fees, trying to avoid paying those fees. If the losing party can dress that up as a challenge to the reasonableness of the fee they are being asked to pay, the more likely they will make … Continue reading Reasonableness of adjudicator’s fees – a victory for common sense
It seems a long time since I wrote about the suggested amendments to the Scheme for Construction Contracts 1998 in England. It probably feels a long time because it was 15 months ago. Over the last week or so the English, Welsh and Scottish governments have all published their amendments to the Scheme and the Scottish … Continue reading Scheme amendments published. Was it worth the wait?
HHJ Waksman QC’s judgment in Lanes v Galliford Try looks set to change adjudication practice. It isn’t often we get a TCC judgment that I can say, hand on heart, will potentially impact on some adjudicators’ approach to decision making as much as this one is likely to.
The Adjudication Society, in conjunction with the Chartered Institute of Arbitrators, has recently published guidance for adjudicators, Jurisdiction of the UK Construction Adjudicator. I welcome the guidance note. It is an interesting and helpful document, which highlights that ensuring “an adjudicator has the jurisdiction to decide the dispute referred to him is of utmost importance to the … Continue reading Guidance on jurisdiction for UK adjudicators
I recently read a paper by Edwards-Stuart J, published by the SCL. He called it “When the adjudicator gets it horribly wrong” and discussed what options, such as CPR Part 8, are available to parties when an adjudicator makes a “fundamental mistake”. Edwards-Stuart J cited three examples of adjudicator mistakes: Adopting an incorrect method of calculation. … Continue reading When the adjudicator gets it wrong
Up until last week (Friday to be exact), it had been almost 60 days since the TCC published one of its adjudication enforcement judgments on BAILII (and I’m excluding the second Lanes Group’s judgment simply because it was published late, came out of sequence and was pretty much covered in the first judgment). 60 days … Continue reading Where have all the adjudication enforcement cases gone?
How often do you wonder about the skills an adjudicator has and think “I bet those skills are really useful in other spheres of dispute resolving”? I imagine most people don’t give much thought to my question and I can see why that may be. However, I don’t think it has always been this way. Once … Continue reading An adjudicator’s skills
I read an article recently all about who should pay for the reasons in adjudicators’ decisions. Cliff Wakefield, the author, argued that some adjudicators go too far, and write too much, and that their long-windedness costs the parties (usually the losing party) a disproportionate amount of money. He suggested that perhaps it is time that parties … Continue reading Are there reasons to be cheerful in an adjudicator’s decision?
The adjudicator has no free-standing power to award interest and paragraph 20(c) of the Scheme for Construction Contracts 1998 (if it applies to the adjudication) does not give him one (Carillion v Devonport). The adjudicator only has power to award interest if that issue has been referred to him or the parties have agreed it falls … Continue reading Claiming interest in adjudication under Late Payments Act 1998
I was reading an old case recently where one side was represented in court by a very eminent QC, while the other side was using junior counsel. Maybe it was just me, but I couldn’t help noticing that the judge, almost without exception, accepted the senior counsel’s points while dismissing the junior counsel’s points. Now, I’ve no … Continue reading Unwitting bias of the adjudication tribunal
There is an interesting article by Cliff Wakefield in the latest Construction Law Journal, “Are the users of adjudication getting a raw deal?”. Cliff discusses whether there is a decline in adjudication referrals at the present time, notwithstanding the recession (when you would expect to see more not less referrals), because the process has turned into such … Continue reading Should an adjudicator limit the number of referrals to him?
I have noticed an increase in the number of adjudications that are referred to me where I have not been nominated via an adjudicator nominating body (ANB) like the RICS, but rather, at the outset I was named in the parties’ contract as the adjudicator or agreed by the parties following a dispute arising. I … Continue reading Who do you want as your adjudicator?
The Scottish courts call it “failing to exhaust your jurisdiction”. The English courts haven’t come up with a snazzy name like that, they just say the adjudicator failed to consider submissions before him or ignored aspects of a party’s submissions. It all boils down to the parties having a fair hearing and the outcome is … Continue reading Excluding submissions breaches rules of natural justice
I have frequently written about adjudicators getting jurisdictional challenges round their ears. Probably too frequently for my liking and here I am again, on the same subject. This time I’ve gone north of the border. There is nothing wrong with that as the Construction Act 1996 is the same either side of the border and so … Continue reading Tripping up over jurisdictional challenges
My last post was all about the “great” section 108A debate (or the “not so great” section 108 debate as one of my fellow PLC bloggers put it!). I’m back again to talk about it, or at least the subject of Tolent clauses, which section 108A was intended to banish from our world of adjudication. … Continue reading Tolent 1 – 0 Yuanda
Last month, in Paton and another, Re Judicial Review, Lord Bannatyne enforced an adjudicator’s decision even though the adjudicator had relied on his own knowledge and experience in arriving at certain conclusions. Now the Scottish court has been asked the same question again (in SGL v RBG) but this time Lord Glennie refused to enforce the adjudicator’s … Continue reading Adjudicator using own knowledge and experience (again)
It was always about cash flow. That’s what Sir Michael Latham said (and Lord Denning before that). Cash-flow was (and remains) the “lifeblood of the industry”. Somewhere in the last 12 years the cash-flow message seems to have gotten lost in the complexity and detail of many of the construction disputes that are referred to adjudication. … Continue reading Adjudication Latham-style: is this how it was meant to be?
Last week I looked at the natural justice issues that arose in the Scottish case, Paton and another, Re Judicial Review. Another aspect of Lord Ballantyne’s judgment also interested me – the evidence as to how the adjudicator decided what events were the cause of critical delay and warranted the granting of an extension of … Continue reading How do I decide what delayed the works?
I seem to have written quite a few posts about cases where the adjudicator was alleged to have breached the rules of natural justice in this column over the last two years or so. That trend does not seem to be abating, as this post demonstrates, following the judgment in Paton and another, Re Judicial Review.
In last week’s post, I outlined the views of the two camps in the “great section 108A debate”, namely: The narrow interpretation camp, which considers that section 108A of the Construction Act 1996 (as amended) will banish Tolent clauses, but permit clauses allowing adjudicators to allocate their fees and expenses. The wide interpretation camp, that argues … Continue reading The “great” section 108A debate – part 2
The Society of Construction Law has hosted various “great” debates over the years, most memorably the Great Delay Analysis Debate. A new title the SCL may wish to consider is the “great section 108A debate”, as I seem to hear about little else at the moment.
As an adjudicator, asking yourself the correct question (even if you get the answer wrong) is one of the keys to issuing a decision that should be complied with and which the parties will be able to enforce in the TCC. Over the years, we’ve had several judgments on the point. They date back to Dyson J’s … Continue reading Did the adjudicator ask himself the correct question?
Ann Minogue’s article Can we be of any assistance? (Building, 21 January 2011) asked whether there is a role for lawyers in the adjudication process. She wondered whether it is time to “review the industry’s original ‘no lawyer’ position, which [she] previously supported”. Ann’s article suggests that in the run up to the Construction Act 1996 coming into … Continue reading Should lawyers help parties in adjudication?
Or should that be “Damp squib Part 2”? (For Part 1, see Matt’s April 2010 post.) When BIS launched its consultation on the Scheme for Construction Contracts 1998, we were all hopeful that, once our answers to the consultation had been submitted, it would pave the way for the amendments to the Scheme and the … Continue reading Does seeing the Scottish Scheme mean we are a step closer to the Construction Act amendments?
Everyone knows that without a construction contract you can’t have a statutory adjudication. Everyone also knows that, absent a contractual adjudication agreement, if there isn’t a construction contract, the adjudicator doesn’t have jurisdiction and so, if he goes ahead and reaches a decision that one party refuses to honour, the court will not enforce it.
“This gun for hire” was a 1940’s film-noir starring Alan Ladd and Veronica Lake. It was about a hit man and an entertainer, good cops and bad guys, and revenge. Hardly a film that would immediately make you think about 21st century adjudication, or allow you to draw parallels with the process. However, I think you’d … Continue reading This gun is not for hire: experts in adjudication
There have only been a couple of TCC cases reported since the new year, so I thought I’d use the lull to revisit the subject of meetings in adjudication, and specifically some of the questions that parties might ask about them.
I have referred to the slip rule in adjudication on a number of occasions, most recently following Ramsey J’s judgment in O’Donnell Developments v Build Ability. It is a handy implied term for those occasions when adjudicators make a mistake. Akenhead J’s judgment in Redwing v Wishart provides yet another example of an adjudicator getting his … Continue reading Slip rule to the adjudicator’s rescue, again
Last year I wrote about the Scottish judgment of WH Malcolm Ltd and Lady Smith’s finding that the adjudicator’s views on a particular issue (SMM7) were not part of her decision, they were just part of her reasons. Just before Christmas, Akenhead J looked at a very similar issue in Redwing v Wishart.
Two years ago I asked the question, “Will the dawn of the new year bring any changes to the construction industry, or will it be more of the same?”. Over the last two years we have seen significant changes, with the on-going recession resulting in a number of high-profile insolvencies, the first coalition government since the war and … Continue reading What does 2011 hold for the construction industry?
Under section 108 of the Construction Act 1996, parties to a construction contract have the right to refer a dispute to adjudication “at any time”. Over the years, much has been written about the meaning of “at any time”, but I think its meaning is relatively clear. Liability for the costs of an adjudication is another issue that … Continue reading Costs of adjudication after Tolent and Yuanda
The SCL recently published a paper by HHJ David Grant, which he had presented earlier this year to a bunch of arbitrator and construction law types in Derby. The paper “Some pitfalls for adjudicators to avoid”, with its self-explanatory title, continued the themes of Coulson J’s talk “The perfect adjudicator’s decision“, which was given in May … Continue reading Am I biased?
A few weeks ago, I wrote about the timing of when adjudicator’s fees start being incurred. John Redmond commented on my piece, but one thing neither of us mentioned is which party should bear the liability for the adjudicator’s fees incurred specifically on an unsuccessful jurisdictional challenge. We can look at this question in nice, easy stages.
Nowadays, it is common to see businesses advertising themselves as being 24/7, meaning they are open all day, every day. But are they truly 24/7 businesses, manned regardless of the time or day, or is it just a euphemism for being there when you need them, within reason?
I’m sure most adjudicator’s would agree that reasons are part and parcel of their decisions. We may not be required to provide reasons, unless requested to do so (for example, see paragraph 22, Scheme for Construction Contracts 1998) but, in practice, when we are making findings on issues of law or fact, it is unusual … Continue reading Reasons for an adjudicator’s decision
I sometimes wonder if anyone ever gives thought to when the clock starts ticking and an adjudicator’s fees start accruing. It came up in conversation recently, particularly the question of what happens immediately after an adjudicator receives the papers in an adjudication.
I was recently asked whether I think there are any construction disputes that are unsuitable for adjudication. My answer was simple: no, but…
Everyone involved in the construction industry is familiar with the terms “interim binding” and “final and binding”, especially when referring to the effect of a certificate. Equally, they are familiar with the idea that an adjudicator’s decision is an interim one, which can only be overturned by a court, arbitrator or by agreement. So, you can … Continue reading Interim or final and binding, what does it all mean?
Last month I wrote about parties subsequently appointing an adjudicator as their expert, and the potential for the adjudicator/expert to be, or appear to be, biased. It was interesting that the post attracted two comments, with each one putting one side of the argument in a situation where the adjudicator was subsequently invited to act as a solicitor … Continue reading Repeatedly appointing the same adjudicator
It isn’t often that you see quantity surveyors caught up in an adjudication as one of the parties, although they often feature heavily in other respects (as the parties’ experts, representatives or even as the adjudicator). In fact, I am not personally aware of a claim against a quantity surveyor, although I have seen breach of … Continue reading Are quantity surveyors perfect?
Regular readers of my blog (and followers of PLC Construction) may be forgiven for thinking that I have a crystal ball and can see into the future, after writing last week about without prejudice, only for the very same topic to appear in a Coulson J judgment later the same day. Having discussed without prejudice last week, … Continue reading Making enquiries of the parties to adjudication
What happens if, during the adjudication, one party intentionally or accidentally discloses to the adjudicator a settlement offer made by the other party?
It may be common place for parties to arrange for a daily transcript of court proceedings to be produced, but I’ve just had first-hand experience of parties using transcribers in the adjudication hearings before me.
The title may be adapted from Shakespeare’s Hamlet, but it is a question often posed in adjudication. Should the adjudicator resign when he is invited to do so? Most practitioners are familiar with the responding party inviting the adjudicator to resign, often citing jurisdictional reasons for the invitation, but what happens if it is the referring party that … Continue reading To resign or not to resign: that is the question
Recently I wrote about “in writing” and how adjudicators deal with the issue of “is there a construction contract?”. Shortly after that blog was posted, I was appointed in a dispute where the responding party challenged my jurisdiction, arguing that there was no construction contract as there was nothing in writing. The referring party denied … Continue reading Evidence satisfying the “in writing” test in section 107(4)
The question screams bias to me. Certainly, if the question was the other way around (can a party’s expert subsequently act as an adjudicator on the same dispute), I doubt anyone would think anything other than apparent bias. But is the answer so black and white?
Much has been written about section 107 of the Construction Act 1996 and the meaning of “in writing“, not to mention the myriad of case law on the point. In the last few years, a fair number of paragraphs have also been devoted to the changes in the LDEDC Act 2009 that, if they ever … Continue reading Contracts “in writing” – not gone yet
Parties are free to agree that a dispute will be referred to adjudication, even if the Construction Act 1996 does not apply to their contract or there is no contractual adjudication clause. Such ad-hoc adjudications are nothing new. As HHJ Gilliland QC said (in Nordot Engineering Services Ltd v Siemens PLC, CILL September 2001), when … Continue reading The terms of an ad-hoc adjudication
I wonder what would happen if I used words such as “I declare I have jurisdiction” every time a responding party challenged my jurisdiction and invited me to consider it. I’m sure everyone is familiar with adjudicators making non-binding decisions on their own jurisdiction, but do parties really analyse the language adjudicators use when they give their … Continue reading I declare I have jurisdiction!
Once again the TCC has been looking at the scope of the notice of adjudication and the consequences of an adjudicator’s decision to rule out parts of the evidence before him.
No doubt there will be considerable column inches written in the coming days (not to mention the many water-cooler discussions taking place) over the Scottish court’s latest decision in City Inn v Shepherd. I’m not surprised, as it is rare these days to see a judgment that tackles issues such as concurrent delay and extension of … Continue reading Conditions precedent to claim: it’s a matter of fact
I read a nice little judgment the other day. It was by Lord Glennie in the Scottish Court of Session. One of the issues before the court was whether the adjudicator had made a number of mistakes when reviewing one of the parties’ submissions, meaning that he either exceeded his jurisdiction, failed to exhaust his … Continue reading Adjudicators make mistakes, occasionally
It is commonplace for a potential adjudicator to get asked questions about previous involvement with the parties before he is appointed. All the nominating bodies do it. Solicitors often get involved in the process too. Sometimes the questions go further than just the parties, sometimes you get asked about firms of solicitors or specific individuals, such as the … Continue reading Disclosing previous involvement with the parties
I’m sure most people would say the answer to the question of “when should the adjudicator deliver his decision to the parties?” is as soon as he has reached it. Certainly, I know from experience what it is like when you don’t do that. Therefore, I was rather surprised to read the judgment in Lee v Chartered Properties, … Continue reading When should the adjudicator deliver his decision?
Keen followers of adjudication case law will have noticed that there are now a few cases where adjudicators have been held to have breached the rules of natural justice, or tripped-up in the exercise of their jurisdiction, because they have not considered a party’s defence or part of it. I’m thinking of cases like Quartzelec Ltd v … Continue reading When an adjudicator fails to “exhaust his jurisdiction”
In Bouygues v Dahl-Jensen, the Court of Appeal said: “Adjudicators will make mistakes. Sometimes those mistakes will be glaringly obvious and disastrous in their consequences for the losing party.” Even though the possibility of making mistakes was recognised by the Court of Appeal (and both parties, as they agreed that the adjudicator had made a mistake), the court went on … Continue reading Declaring your way around an adjudicator’s decision
Will there ever come a time when parties can stop arguing over whether all of their contract terms are in writing? Some may argue that this time will come (maybe next year) when the amendments to the Construction Act 1996 come into force. That’s because part of the proposed amendments do away with the section 107 … Continue reading Don’t forget your contract terms need to be in writing
This may be a children’s playground taunt, most commonly associated with accusations of dishonesty (it is actually paraphrased from William Blake’s poem, “The Liar”) but, in recent months, the courts have dealt with a number of cases where one party has alleged the other is guilty of fraud (or something akin to fraud).
Last month I wrote about rule 6 of Coulson J’s “seven golden rules of adjudication“; his road-map for maximising a party’s chances of having an adjudicator’s decision enforced. This week I thought I would concentrate on rule 2, which I think also merits a comment.
The title sounds like an exam question, but is there any truth in the statement? Since 2008 and the decision in Cantillon v Urvasco, the TCC has been considering the knotty problem of what to do with an adjudicator’s decision when part of the decision is unenforceable for some reason or other. Long gone are … Continue reading It’s probably easier to split hair than it is to split an adjudicator’s decision. Discuss.
A funny thing happened to me recently. I was asked to consider whether a day was in fact a bank holiday and should be excluded from the calculation of when my decision was due.
Like most adjudicators, over the years I have had more than one of my decisions scrutinised by the courts. Therefore, I was as interested as the next adjudicator to find out what Coulson J was going to say about the “perfect adjudicator’s decision” when he spoke at the SCL meeting last week.
Many people are familiar with the Pink Floyd song, Time, and its opening passage of clocks chiming and alarms ringing. Alarm bells often ring in adjudication as well.
Cast your mind back to 1996. I’m not thinking about football and England hosting the European Championship, but rather when what became the Construction Act 1996 was being debated in Parliament. One of the issues which troubled the House of Lords was the extent to which an adjudicator’s decision would be binding; should it be … Continue reading The interim-binding nature of an adjudicator’s decision
Unless you have been trapped overseas by the volcanic eruption in Iceland for the last week or so, you will have seen the furore that Edwards-Stuart J’s judgment in Yuanda v WW Gear has caused and the column inches that have been written about it. Last week I discussed the possibility of an end to Tolent clauses, but another aspect … Continue reading Multi-party disputes post-Yuanda. Are you confused too?
It doesn’t seem that many weeks since I was writing about Edwards-Stuart J’s decisions in the TCC on adjudication enforcement. Just last week, he gave a landmark decision in Yuanda v WW Gear. This case has received a lot of coverage and, having read the judgment, I can see why.
A dispute was referred to me recently that involved an alleged repudiatory breach of contract and an alleged wrongful suspension of work. I had to decide whether these matters, which the contractor argued were central to the dispute (and the parties’ resultant entitlements), were within the scope of what had been referred to adjudication and therefore fell within my … Continue reading What is included within the scope of an adjudication?
The draft amendments to the Scheme for Construction Contracts 1998 were published last week. Although they have been a long time coming, having now read them, I’m not sure it’s been worth the wait. They are, in my view, a “damp squib“.
I went to hear Sir Vivian Ramsey speak last week at the Worshipful Company of Arbitrators‘ Annual Master’s Lecture. His talk was called “Open secrets: the concept of confidentiality in dispute resolution”. He focused on the concepts of privacy and confidentiality in arbitration, mediation and the courts, and only mentioned adjudication briefly. Sir Vivian’s talk got me thinking about whether … Continue reading Is there a duty of confidentiality in adjudication?
Edwards-Stuart J seems to be making waves in the world of adjudication enforcement since his appointment to the TCC last year. First he severed an adjudicator’s decision, then he appeared to introduce a threshold test into applications to stay enforcement proceedings. Now he has granted an injunction, restraining three companies from pursuing three adjudications that … Continue reading Injunctions to stop adjudications; whatever next?
Such an easy question to ask, but how easy is it to answer? It seems to me that there is no straightforward answer. An adjudicator is expected to investigate his own jurisdiction when the notice of adjudication is served. It is accepted that he should resign if he concludes he has no jurisdiction to deal … Continue reading When does my jurisdiction begin?
We have recently had two TCC judgments where the court has appeared to be sympathetic to the difficulties that adjudicators face with late submissions in adjudication. In both cases, the responding party alleged that the adjudicator had breached the rules of natural justice by either ignoring or not taking sufficient notice of its submissions. In … Continue reading Should I take notice of late submissions?
The keenness of responding parties (and sometimes referring parties) to raise jurisdictional challenges about every little (and big) thing is, perhaps, an understandable part of adjudication. It often seems as though parties raise these challenges regardless of whether they believe the challenge has any merit, and irrespective of the stage that the adjudication has reached. Some challenges are … Continue reading No contract “in writing”? That’s OK says the adjudicator, I’ll carry on
Paragraph 20 of the Scheme for Construction Contracts states that an adjudicator “shall decide the matters in dispute”. The adjudicator may also take into account “any other matters” that are within the scope of the adjudication or are matters “under the contract”, which he considers are “necessarily connected with the dispute”. This extends, at paragraph 20(a), to opening … Continue reading What does “final and conclusive” under paragraph 20(a) of the Scheme mean?
I’m not telling you anything new when I say that the adjudicator’s jurisdiction lies at the heart of every adjudication. It is also fairly obvious that if the adjudicator has no jurisdiction to determine the dispute referred to him, ultimately, the parties will waste both their time and money as one party will refuse to pay … Continue reading The adjudicator’s jurisdiction: when “substance and jurisdiction” overlap
Picture this scenario: the construction contract provides that, in the event that the parties cannot agree the identity of the adjudicator, the adjudicator will be nominated by the President or Vice President of a named adjudicator nominating body (ANB).
It seems parties are always trying to think up clever and interesting arguments to resist enforcement of an adjudicator’s decision. Often they rely on alleged breaches of the rules of natural justice, which is an amorphous term for all sorts of alleged wrong-doing. Adjudicators have to be careful, although, even when they are, it seems they still face … Continue reading An adjudicator’s use of evidence and natural justice
Sometimes it is tough being an adjudicator or, at least, it appears that way. You only have to read the judgment in Geoffrey Osborne v Atkins Rail to realise that it isn’t always an easy job. On the other hand, when I read the judgment in ROK Building v Celtic Composting (No 2), I had … Continue reading Sometimes it is tough being an adjudicator
What happens when a dispute is referred to adjudication and the responding party argues “no dispute” because the only evidence of a dispute – the parties’ correspondence – has been marked without prejudice? Can a dispute crystallise if the only evidence of it is privileged?
It is a well-established principle in adjudication that the adjudicator must act fairly and comply with the rules of natural justice. We are all familiar with adjudicators not having separate communications with the parties; not taking advice from third parties; not advising the parties of a preliminary view (if formed) and so on. Equally well-established is the … Continue reading Evidence, rules of natural justice and the adjudicator’s discretion
For many months now, we have all been discussing the changes the amendments to the Construction Act 1996 will have on various aspects of adjudication. Most commentators have focused on three things: an end to contract conditions that require one party to pay for the adjudication, regardless of the outcome; the adjudicator’s ability to direct payment of his fees; … Continue reading Not slipping-up on the slip rule
This week sees the start of the Christmas/new year 2-week shut down on construction sites up and down the country. I suspect lots of construction professionals are not so lucky as those employed on-site. Everyone is familiar with the ambush scenario in adjudication, especially at holiday time. The courts may be critical (see Coulson J’s … Continue reading A day in the life of…
It’s not always easy being an adjudicator. It sometimes feels like you are damned if you do, and damned if you don’t. Ask Mr Shawyer, the poor chap who came in for rather a lot of harsh words from Couslon J last week (in Enterprise v McFadden). In Coulson J’s eyes, he was damned because … Continue reading The adjudicator, challenging jurisdiction and rule 4.90 of the Insolvency Rules
The recent Adjudication Society event focused on nominating adjudicators. It was a group discussion in the style of “Question Time“, with a number of nominating bodies represented (TeCSA, CEDR, ICE, RICS, IDRS). The discussion was very interesting but, unfortunately, for those who did not attend, the Chatham House Rule applies, and so I can’t tell … Continue reading Drafting the Notice of Adjudication
I was recently involved in a case that came before HHJ Seymour QC in the Queen’s Bench division of the High Court. Rather than acting as an adjudicator and having my decision challenged on enforcement, I was acting as a joint expert for the parties. It was unusual to be on the other side of the … Continue reading Is adjudication always suitable for resolving a dispute?
I was reading Akenhead J’s decision in Allied v Paradigm and, aside from the issue of whether the adjudicator had jurisdiction (was there one dispute – termination – or two disputes – termination and damages), one comment in particular caught my eye.
Nowadays parties take for granted that an adjudicator’s decision is enforceable (subject to valid natural justice and jurisdictional challenges), but rarely do parties give thought to the status of the decision.
Or is it?? In reality, it may be more of a crawl, since the draft Scheme hasn’t even been published yet and the Government is talking about an 18 month consultation period on that. In that time, at the very least, we will have a change of government and, most likely, a different party at the … Continue reading It’s go, go, go as the LDEDC Bill gets the green light
Earlier this year, I wrote about why the adjudicator should avoid idiosyncratic language in his decision. Just last week, the adjudicator’s choice of language was before the TCC again in ROK Building v Celtic Composting. This time, the court was being asked to decide whether the adjudicator was being: directive, that is, requiring the responding party to … Continue reading Ambiguity in the adjudicator’s decision
I’ve read Shy Jackson’s post this week, which throws out some interesting ideas on adjudication, expert determination and construction dispute resolution.
I read the recent judgment in Balfour Beatty v Shepherd and some of the issues the adjudicator faced struck a chord.
What is a global claim? A global claim may be defined as a claim where a global or composite sum is put forward as the measure of damages or contractual compensation where there are two or more separate matters of claim or complaint, and where it is said to be impractical or impossible to provide a … Continue reading Global claims: what are they and how do you plead one?
Earlier this year I wrote about what “at any time” means, in the context of a Scottish decision, but do you ever wonder what it actually means? I think its ordinary meaning is self-explanatory but I put the phrase into Wikipedia to see what would come up. I was surprised that I didn’t get any … Continue reading “At any time”: what does it mean?
I recently resigned on day 27 of an adjudication (you may recall that adjudication under the Construction Act 1996 is supposed to be a 28-day process). You may be wondering why I resigned so late in the day.
The appointment of the adjudicator was in the news earlier this year in Bovis Lend Lease v Cofely Engineering, when the court had to consider what the correct procedure for nominating an adjudicator was under the sub-contract.
Edward Davies has written a blog post about time, and the balance lawyers have to strike between giving their advice in the timescale required by the client, and also ensuring that they take sufficient time to ensure that that advice is correct. In an adjudication context, as an adjudicator, time is the most challenging aspect … Continue reading So much to do, so little time (in adjudication)
A number of recent cases have looked, in part, at adjudicators’ decisions over liability for their fees and the parties’ costs.
The principle that, even if the adjudicator makes an error of law or fact, the decision will be enforced, is well established. Equally, parties are familiar with the slip rule that allows the adjudicator to correct mistakes after the decision has been sent out. But what happens when the adjudicator’s choice of language makes the … Continue reading The adjudicator should avoid idiosyncratic language in his decision
From time to time I find myself referred to in TCC judgments. This is part and parcel of acting as an adjudicator. While this hasn’t happened for a while, this week, it has happened twice. In shooting circles, that is known as a “brace”, but I’m not a shooting man!
Most people would think the answer to this question is “no”. Me too. However, I saw an interesting case report by McGrigors LLP recently, which suggests not everyone thinks the answer is “no”.
At the beginning of the year I wrote about some of the things I’d like to see in 2009. Just over half way through the year, I thought it was time to review that list, to see where we are.
Adjudication can be a very flexible process, despite the prescriptive nature of the Construction Act 1996 and the Scheme for Construction Contracts 1998. Provided both parties agree, the timetable can be adapted to suit the parties and, in some instances, the adjudicator. This flexibility can apply to any aspect of the process, including the conduct of … Continue reading Adjudication – your flexible friend
The third party insolvency exception to pay-when-paid clauses is a contraversial one. Many will say that is a shame that the Government did not take more notice of the industry and removed this exception when it published its proposed amendments to the Construction Act 1996 at the end of last year.
My heart sank when I read the judgment in Primus v Pompey. It’s a case that all adjudicators should read and take note of.
Cash flow is so often called the “life blood” of the construction industry and we are all familiar with a party’s right to adjudicate “at any time” to keep the cash flowing, or so the theory goes.
“Do you have a construction contract?” Unsurprisingly, this often-asked question is the starting point for deciding whether a party has a right to refer a dispute to adjudication. If one party is a residential occupier, there can only be an adjudication if the parties have a contractual right to refer a dispute to adjudication. There can only … Continue reading Do you have a construction contract?
Parties usually think of mediation and think of a confidential, without prejudice process. They are right to do so. Rarely is either party likely to want to look behind the settlement agreement reached during a mediation. The recent case of Farm Assist Limited v The Secretary of State for the Environment, Food and Rural Affairs … Continue reading Mediators, adjudicators and confidentiality
Last week I wrote about Bovis v Cofely, looking at whether the sixth adjudicator should have resigned. Other aspects of Coulson J’s judgment also caught my eye.
Whether the adjudicator should resign when invited by one party to do so is very much dependent on the facts of the particular situation. I read with considerable interest the judgment in Bovis Lend Lease Ltd v Cofely Engineering Services  EWHC 1120 (TCC) and wondered what I would do if I found myself in the … Continue reading Should the adjudicator resign?
I should have realised that as soon as I suggested that the TCC appeared to have gone quiet, we’d get an adjudication enforcement decision. Good old Sir Peter!
Is it just me, or is anyone else wondering what has happened to all those enforcement proceedings in the TCC, which we got so used to reading about? You may recall that there was a flurry of activity at the end of last year and at the start of this year, but in recent weeks, … Continue reading Are parties paying-up rather than challenging adjudicators’ decisions?
The issue used to be whether the adjudicator had jurisdiction to award interest under the Scheme for Construction Contracts. There were conflicting interpretations as to whether an adjudicator had a statutory standalone power to award interest (like a judge or arbitrator) or whether he could only award interest if a right existed.
Everyone who is familiar with the Construction Act 1996 knows (or should know by now), that certain contracts are excluded from its payment and adjudication provisions. This includes the top tier contract between the local authority (usually) and the project company in PPP/PFI deals.
If the Scheme for Construction Contracts governs an adjudication, the adjudicator is given certain powers, including the power to take the initiative in ascertaining the facts and the law necessary to determine the dispute.
In HS Works v Enterprise, the court enforced an adjudicator’s decision that decided, among other things, that the absence of a valid withholding notice was fatal to the contractor’s attempt to withhold monies from the sub-contractor’s final account.
My blog on what to do if a party seeks to rely on an earlier adjudicator’s decision on an unrelated project reminded me of another relatively common issue: what should an adjudicator do when one party includes without prejudice material in its submissions and the other party objects?
I recently wrote about being an adjudicator at a mock adjudication hosted by Collyer Bristow. The dispute was between a contractor, Q (the referring party) and the employer, L (the responding party). Q claimed L owed it £400,000, which L denied. This post looks at the allegation of bias, that is: was there a risk of … Continue reading Determining whether the adjudicator is biased
It is rare to see an individual (or a couple, as in Shaw v Massey) arguing the residential occupier exclusion (section 106 of the Construction Act 1996) applies to their contract. This is because nowadays all the commonly used standard form contracts contain or incorporate an adjudication clause. Therefore, even if an individual is, strictly speaking, a residential … Continue reading Residential occupiers, second homes and adjudication
It is funny that Matt should write about the admissibility of a previous adjudicator’s decision in a later adjudication, where the parties were the same, the facts were similar but the project was entirely different. Recently I have experienced this first-hand, but with a twist.
The TCC’s recent judgment in Thermal Energy Construction Ltd v AE&E Lentjes UK Ltd must have given some adjudicators a bit of a fright. The TCC refused to enforce an adjudicator’s decision despite previous case law (upheld in the Court of Appeal) that an adjudicator’s decision can only be challenged for a failure to give … Continue reading Adjudicators have their reasons
I was the adjudicator at a mock adjudication hosted by Collyer Bristow recently. The dispute was between a contractor, Q (the referring party) and the employer, L (the responding party). Q claimed L owed it £400,000, which L denied. L argued: There was no contract “in writing“, so the dispute could not be referred to … Continue reading No contract “in writing”: an adjudicator’s view
Like many adjudicators, in the current climate I am concerned that parties may go bust and I will not get paid. I have already experienced one or both parties going bust after the decision has been delivered, and I haven’t been paid. Being entitled to a few pence in the pound in the insolvency doesn’t … Continue reading When will the adjudicator get paid?
I have recently read Ramsey J’s judgments in OSC Building Services v Interior Dimensions and PT Building Services v ROK Build in adjudication enforcement proceedings and I was intrigued by what I read. I think we may be witnessing a move away from the court’s strict interpretation of what constitutes “the dispute” referred to adjudication.
Adjudication is generally a non-binding interim process which leaves the door open to finally deciding the dispute by litigation or arbitration. Effectively then, a party can lose a battle but ultimately win the war.
It is only the beginning of February and already there is a new trend developing in the TCC: parties are making Part 8 applications during an adjudication. This is something I welcome (it was on my wish list for 2009).
The topic for discussion at the last Arbitration Society lunch (which I chaired) was the TCC’s decision in Quartzelec Limited v Honeywell Control Systems Limited  EWHC 3315 (TCC). This case raised a number of interesting points:
In his Building column in November 2007, Tony Bingham wrote about the House of Lords decision in the Fiona Trust case. You’ll remember it: it’s the one where the House of Lords decided that the words “disputes arising under a contract” in an arbitration agreement are wide enough to include disputes “in connection with” the contract.
It is now routine for the responding party to challenge the jurisdiction of the adjudicator. In my experience, once the adjudicator has confirmed acceptance of his appointment and the referral notice has been issued, it is advisable for the responding party to:
I was recently asked about the admissibility of a previous adjudicator’s decision in a later adjudication, where the parties were the same, the facts were similar but the project was entirely different. This was a new one for me.
Will the dawn of the new year bring any changes to the construction industry, or will it be more of the same?
Mr Justice Coulson’s judgment in Westwood Structural Services Ltd v Blyth Wood Park Management Company Ltd caught my eye last week. The judgment may not rock the legal world to its foundations, but it is uplifting reading for all those involved in adjudication. There are two reasons for this:
Coulson J’s judgment last week in Balfour Beatty v Modus Corovest (about the Hounds Hill Shopping Centre in Blackpool) was surprising in a number of ways:
Like many, I was keen to see what the Government would do once the consultation period for the Construction Contracts Bill ended earlier this year. After all, they didn’t draft a Bill the industry wanted the first time around – it was universally criticised – and were said to be having a second attempt at … Continue reading Construction Act 1996 changes: a second coming
The comments made by Coulson J in Jacobs UK Ltd v Skidmore Owings & Merrill LLP (that relate to a summary judgment application in the Technology and Construction Court) struck a chord with me in relation to adjudication.
Mr Justice Akenhead has recently refused an application for summary judgment to enforce an adjudicator’s decision, partly on the basis that the contract was not “in writing”. At first blush the case appears unremarkable, but the judgment is worth reading as it provides important guidance on what “in writing” actually means.
Well, it looks like we might finally be getting the amendments to the Construction Act 1996 that we were promised by Gordon Brown over four years ago. After a review by Sir Michael Latham and two consultations, a draft Bill was eventually published by DBERR in July 2008 (July 2008 Bill) (see Legal update). Many … Continue reading Will they ever get it right? The Construction Contracts Bill 2008
If the challenge is made early in the proceedings, before the responding party has incurred substantial costs, then I am more likely to resign. The recent cases of Birmingham City Council v Paddison Construction Ltd  EWHC 2254 and Benfield Construction Ltd v Trudson (Hatton) Ltd  EWHC 2333(see PLC’s update), (and the previous case of HG Construction … Continue reading Serial adjudications: a blight on the adjudication landscape, or an inevitable consequence of the process?
We adjudicators are only human, although sometimes the parties act in a manner that suggests they have forgotten. I would advise the parties to avoid a number of practices or behaviours during an adjudication: