REUTERS | Ali Jarekji

November 2014 digest: autumn, ANBs in adjudication and “plebgate”

John Clare, Remembrances:

“Summer’s pleasures they are gone like to visions everyone, and the cloudy days of autumn and of winter cometh on.

I tried to call them back but unbidden they are gone, far away from heart and eye and forever far away.”

The weather is always close to our hearts and no more so than at this time of year, with the falling leaves and endless grey skies. Like last year,  November 2014 has been mild and wet, with overnight frosts just starting to feature in the forecasts. Surely it is only a matter of time before we get some snow but, before that winter storm arrives, we’ve been witnessing a storm in the adjudication world.

It isn’t often that an adjudication enforcement case comes along and gets everyone excited. However, that is precisely what Ramsey J’s judgment in Eurocom v Siemens has done. He found there was a strong case of fraudulent misrepresentation on the application form for an adjudicator, which was sent to RICS (as the ANB). We have published the views of Suber Akther (of Siemens), Fionnuala McCredie QC and Paul Bury (who represented Siemens) and Jonathan Cope.

Elsewhere in adjudication, the TCC held that the fourth adjudicator was not asked to decide the same dispute as the third adjudicator (which Charles Pimlott looked at) and it considered the enforceability of an adjudicator’s decision made under the adjudication scheme in the JCT Building Contract for a Home Owner/Occupier, 2009 Edition. Matt Molloy highlighted the scope of an adjudicator’s jurisdiction and reviewed the meaning of “response”, and Jonathan Cope discussed the right to adjudicate “at any time”.

During November, the TCC announced that it was using the new CE-File electronic court file in all Part 7 and 8 claims (including adjudication enforcement), the TCC ordered specific performance in place of a performance bond, the Commercial Court highlighted the need for a party to explain the basis of redacted documents in disclosure and the Supreme Court confirmed that the merits of a party’s case are irrelevant in case management decisions.

In an international context, the IBA issued country-specific guidance on ADR in international construction disputes, we reported on a convention on the future of international dispute resolution, Charles Lilley and Callum Johnson discussed the Dubai International Financial Centre (DIFC) Courts and Matthew Heywood and Charlotte Holmes considered liquidated damages in Qatar and the UAE.

Closer to home, we’ve seen a new note on the RIBA building contracts 2014 and Elizabeth Repper considered the court’s approach to ADR and mediation in TCC claims.

On the public procurement front, November saw considerable activity, as Gatwick Airport successfully struck out proposed amendments to the case against it, the Cabinet Office successfully applied to lift the automatic suspension of the award of its media contract (and it was also awarded its costs) and HM Treasury failed to lift the automatic suspension of the award of its contract for a childcare scheme. We also saw advice on bid-rigging, a quarterly legislation and policy review, October’s case digest and information on the major projects authorities’ priorities.

In other news, we’ve seen phase two of a review of architect regulation, guidance on the Code for Sustainable Homes (in Wales), international property measurement standards for offices and government consultations on Crossrail 2, exemptions from zero carbon homes policy and health and safety sentencing guidelines.

And finally, this time last year everyone was talking about the Court of Appeal’s judgment in Mitchell, where Dyson LJ upheld Master McCloud’s ruling that Mr Mitchell could only recover his court fees due to a failure to file a costs budget on time. Although the rules on relief from sanctions moved on with Denton, Mr Mitchell’s libel action over “plebgate” is once again in the news. Fast forward 12 months and he has lost his libel action and (reports suggest) faces legal bills of up to £3 million. 27 November has not been a good date for Mr Mitchell.

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