Practical Law

All good things come to an end, and sadly this will be our last blog for Practical Law Construction. However, fear not as we will continue to write some articles for them in the future, and we hope to relaunch the blog on a separate platform later this year. We’re afraid you can’t get rid of us that easily!

We’ve never done a joint blog before, and so welcome to our first and last joint blog for Practical Law Construction. Rather than both try and write about a recent case, we thought we’d each do a whistle stop tour of some of our highlights of the past 15 years.

Where shall we start??

Matt’s highlights

My first post was published on 24 October 2008 and was called How to stay on the right side of the adjudicator. I started off by reminding everyone that adjudicators are only human (it took Rag ‘n’ Bone Man another eight years to sing about this) and that post contained a lot of “don’ts” (eleven, I counted).

Since then I think I’ve covered the A-Z of adjudication and much more besides. I was therefore going to write an A-Z of what has happened over the last 15 years, but then I realised just how hard it is and how subjective it might appear (why did you include case X and not case Y, that sort of thing). Also, whether 26 important things have happened is a moot point, and many of the things that came to mind actually fell outside my 15-year blogging window (such as Amec v Whitefriars, Macob v Morrison, Bouygues v Dahl-Jensen and Carillion v Devonport, to name just a few).

So, instead, I thought I’d highlight just a few important things from the case law that are relevant to adjudicators specifically, not adjudication more broadly. As you will see, my choices focus on being appointed and getting paid. If I was still using my A-Z theme, I would have A (for the adjudicator) as my starting letter, plus B (for bias) and P (for payment), with a little bit of J (for jurisdiction) on the side:

• Cofely Ltd v Bingham is an arbitration case, but it tells us a lot about the meaning of apparent bias and the amount of information adjudicators (and arbitrators) are required to disclose about other appointments (past and present) when they are approached. Parties also know they have to be careful when they complete an adjudicator nomination form, particularly if they want to exclude individuals from the nomination process (Eurocom v Siemens).
• Linnett v Halliwells LLP established that the parties are jointly and severally liable for the adjudicator’s reasonable fees and expenses, and an adjudicator can recover their fees from a party even if that party did not sign the adjudicator’s terms and conditions (unless that party challenges jurisdiction and immediately withdraws from the adjudication). This was confirmed in Fenice v Jerram Falkus and Christopher Linnett Ltd v Harding, where the judge found there was a contract by conduct. However, following PC Harrington v Systech, we also know that an adjudicator will only get paid if their decision is enforceable (unless they’ve included appropriate wording in their appointment).
• An adjudicator’s jurisdiction is vital to the process and adjudicators have considerable latitude in how they conduct an adjudication. That said, it hasn’t stopped parties repeatedly challenging adjudicators’ decisions, alleging that the adjudicator acted without jurisdiction (and in breach of the rules of natural justice). The judgments on this topic are too numerous to mention, but one recent case (Lonsdale v Bresco) is worth including because it tells us how adjudicators ought to consider whether to decline an appointment if the referring party is in liquidation. (I know in the Supreme Court Lord Briggs said that an insolvent party has a statutory and contractual right to refer a dispute to adjudication, but one has to question the futility of that if the decision cannot then be enforced).
• On a slightly different payment theme, the Construction Act 1996 amendments have spawned a whole raft of case law, far more than we saw prior to the amendments. ISG v Seevic is one judgment that stands out, not least because it paved the way for the smash and grab culture of the last few years, which was further developed by Coulson J (as he was then) in his last TCC judgment (in Grove Developments Ltd v S&T), and then by Sir Rupert Jackson in the Court of Appeal.

Jonathan’s favourites

My first foray into blogging was in November 2008, and my maiden blog started with the words:

“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.”

Clearly my crystal ball was somewhat blurred that day as it took another three years for the amendments to come into force, but they nevertheless provided fertile ground for blogging, and I have covered issues such as on the repeal of section 107 and, more recently, another consultation to ponder (which I did, twice). Also, who can forget the great section 108 debate (both parts) and the development of the law on parties claiming their costs (I’m comfortable that I called this one right!). I also celebrated (if that is the right expression) 20 years of adjudication under the Construction Act 1996.

There has been something of a food theme in quite a few of my blogs. We’ve had chocolate mousse (something to do with good faith clauses), sunflower seeds and organic wheat (an appeal under section 69 of the Arbitration Act 1996), corn (being shipped from the Ukraine to Egypt), a Lebanese restaurant (where I talked about feast or famine), Marmite (it was to do with an offshore wind farm, not whether you are in the love or hate camp), whisky (which I realise might not be classed as a food) and a whole sweetshop full of goodies (black jacks, flying saucers, cola cubes, sherbet fountains and, of course, refreshers). I’ve also discussed diets of taxation.

More broadly, I’ve asked what the Romans ever did for us?, noted that my namesakes are a ballet dancer and long-dead English general, debated whether concurrent delay is rarer than a hen’s tooth, referred to the fact that buses often turn up in threes (especially after you’ve been waiting ages) (and this happened twice), made comparisons between adjudication challenges and Supermarket Sweep, quoted from EM Forster, put Donald Trump in the same box as Marmite (quite understandably, in my view), and I even managed to get Katie Price and Peter Andre in the same sentence as Tony Blair and Gordon Brown (which wasn’t that easy to do).

Although I’ve also added the odd music reference to provide light relief into some dry topics, I’ve thoroughly enjoyed writing the blogs, and feel privileged to have been able to share my thoughts on some of the seminal construction law cases of the past 15 years such as Walter Lilly v Mackay and S&T v Grove, as well as the host of cases on smash and grab culture, as Matt has referred to above.

Thank you

It would not be appropriate to end our blogging for Practical Law without acknowledging and thanking you, the readers, for sticking with us over these 15 years. We were always encouraged to carry on blogging by the feedback we got from our peers, whether positive or negative.

Thank you to our families for allowing us the time to indulge in this passion, and particularly our long suffering wives who have had many ideas bounced off them over the years.

The vast majority of our blogs have arisen from TCC cases, and we must thank the judges for providing us with a wealth of high quality material on which to base the blogs. We acknowledge your great service to the construction law world, and appreciate that, not only does your work get published for all to see, but you also have no right of reply to the likes of us!

And finally last, but by no means least, we must thank our editor, Michelle Rousell, without whom most of the blogs wouldn’t have made it into print. We’re eternally grateful for the amazing support she’s given us over the past 15 years and, while she’s not one to covet praise, we are in no doubt that she’s the best in the business.