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 came out of that conference. Now it’s my turn!
Ireland’s Construction Contracts Act 2013
As Jonathan said, the Construction Contracts Act 2013 is Ireland’s long awaited answer to the UK’s Construction Act 1996. However, it isn’t necessarily the same and it is, potentially, going to throw up several different issues. For example:
- The buzz in Ireland is that adjudication may fall under the statutory umbrella and that adjudicators may be open to judicial review and the Wednesbury unreasonableness test. This is based on constitutional law and the fact that the only adjudicator panel (ANB) is run by the Minister and/or the State.
- There is no equivalent to the TCC in Ireland and enforcement of an adjudicator’s decision could be a lengthy process.
This post focuses on enforcement. I will save the constitutional law issues for another day…
Where does our adjudication enforcement procedure come from?
In England it all started with Macob Civil Engineering v Morrison Construction Ltd.
If we turn back the clock to late 1998, we will discover that there was a payment dispute between a groundworks sub-contractor (Macob) and a contractor (Morrison) over works at a retail development in Camarthen, South Wales. The sub-contractor referred the payment dispute to adjudication and the adjudicator decided that the sub-contractor should be paid £302,000 odd “forthwith”. The adjudicator also gave permission under section 42 of the Arbitration Act 1996 for either party to apply to court to enforce his decision.
What happened in Macob may be the stuff of legend, what with Dyson J’s quote about “a coach and horses” being driven through the Scheme for Construction Contracts 1998 if he didn’t enforce the adjudicator’s decision, so he did. He also commented that by imposing a provisional and speedy dispute resolution procedure on the construction industry, Parliament clearly intended an element of “rough justice” and a process in which mistakes and injustices were more or less bound to happen.
Adjudication enforcement was born, but not quite as we know it today. That came later, although I’m not sure exactly when the TCC’s current procedure was developed (and first appeared in the TCC Guide) or when, instead of relying on the court’s right to enforce a tribunal’s peremptory order under section 42, we started using CPR 7 (or CPR 8) and CPR 24.
It may have been shortly after Macob, since even in that first enforcement case, Dyson J suggested that it was unclear why section 42 had been included in the Scheme, indicating instead that parties should issue proceedings claiming the sum due, followed by a summary judgment application. Sound familiar? As he was the Judge in Charge of the TCC at the time, those words would have been persuasive, despite Parliament’s contrary intention and the newness of the adjudication enforcement process.
While most of us may be familiar with the quote and the principles that Macob established, I also suspect that most of us are less familiar with section 42 being used in this way. In fact, how many people realise that one of the amendments to the Scheme for Construction Contracts 1998 in 2009 involved removing the bit about section 42 (it was old paragraph 24)?
Enforcing a judgment in Ireland
Back to Ireland and section 6(11) of the Construction Contracts Act 2013 states that:
“The decision of the adjudicator, if binding, shall be enforceable either by action or, by leave of the High Court, in the same manner as a judgment or order of that Court with the same effect and, where leave is given, judgment may be entered in the terms of the decision.”
That all sounds sensible and straightforward but, I’m told, it takes quite some time to enforce a judgment in Ireland. Therefore, instead of the system we’ve come accustomed to here, with the TCC endeavoring to enforce an adjudicator’s decision within a similar time frame to the 28 days allowed for the adjudication itself, there is an unknown variable – enforcement. That may mean that, insofar as the intention of the Construction Contracts Act 2013 is to ensure parties get paid, that intention will, to a large degree, be lost (at least quickly).
It also does not address the “if binding” point and who or how that point will be determined.
However, I guess only time will tell whether the Irish courts will adapt, just like the TCC has adapted, but I’m sure when Parliament here was considering the original Scheme’s wording, it had no idea that section 42 would not be the way forward.