REUTERS | Petar Kujundzic
April 29, 2014

Let’s put section 105(2) of the Construction Act 1996 into Room 101!

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 surrounding affirmation (referred to as approbation and reprobation in the judgment) and the court’s findings on the section 105(2)(c) exception that I think are really worth talking about.

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REUTERS | Bob Strong
April 22, 2014

Notice of adjudication held to be valid despite “defects”

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 when the notice of adjudication was given. Although the court was specifically looking at the saving provision in clause 1.9.2 of the JCT Intermediate Building Contract (ICD), I must admit I’d always thought it was the notice that set the adjudication ball rolling.

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REUTERS | Toby Melville
April 15, 2014

Are adjudication costs recoverable or not?

A simple question perhaps, but is the answer just as simple?

Since the Construction Act 1996 came into force, the general position has been that, unless the parties agreed (either contractually or specifically in relation to an adjudication), that the adjudicator had jurisdiction to determine whether one party would pay the other party’s costs (legal and/or expert) of an adjudication, the parties would bear their own costs.

Parliament then helpfully intervened by enacting the snappily titled Local Democracy, Economic Development and Construction Act 2009 (LDEDCA 2009). Continue reading →

REUTERS | John Kolesidis
April 15, 2014

The effect of a failed adjudication on the JCT final certificate “conclusive evidence” clause

In University of Brighton v Dovehouse Interiors Ltd, Carr J in the TCC gave guidance on the meaning of “commenced” adjudication proceedings for the purposes of challenging a final certificate under the JCT standard form of contract. The judgment also considers what the position is where the adjudication is then aborted.

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REUTERS | Aly Song
April 15, 2014

Privilege and adjudication revisited

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 possible issue as to whether or not advice and other communications given by claims consultants in connection with adjudication proceedings are privileged. There is little authority on this latter issue and consideration might have to be given to issues of policy if and when this argument arises on another case.”

The Court of Appeal’s judgment in Rawlinson & Hunter v Akers provides some authority on this issue, and my thanks go to Anneliese Day QC for pointing this case out to me. Continue reading →

REUTERS | Alex Domanski
April 9, 2014

Net contribution: a problem shared?

I can’t believe that it is nearly five years since I blogged on the Langstane case. Time obviously flies when you’re getting old.

For those of you with short memories or with youth on your side, in Langstane a Scottish judge held (among other things) that a net contribution clause (NCC) in a consultant’s appointment was not “unreasonable” for the purposes of the Unfair Contract Terms Act 1977. That led to a flurry of claims from consultants (and their representative bodies) that NCCs were “fair” and “judicially endorsed”. Of course, the case decided nothing of the sort; merely that the NCC in question was not so unreasonable as to fall foul of UCTA. Continue reading →

REUTERS | Tobias Schwarz
April 8, 2014

An appeal or just reinforcing the adjudicator’s decision?

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 not agree with the Housing Executive and upheld the first instance decision, which, in turn, meant the court supported the adjudicator’s findings.

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REUTERS | Aly Song
April 7, 2014

Time to sort out limitation in economic loss cases

Alternatively, this post could be called, A critique of Co-Op Group Ltd v Birse Developments Ltd, given this case raises a fundamental question in relation to the law of limitation in professional negligence claims involving engineers and other construction professionals.

In cases of pure economic loss, what should we take as the relevant date for limitation purposes? Is it the date when the building was completed or is it the date when physical damage was suffered? Continue reading →

REUTERS | David Mdzinarishvili
April 1, 2014

The composting case that’s proved to be fertile ground for disputes, but could this latest one have been avoided?

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 one judgment and Composting Systems Ltd in another. Previously, there were at least two adjudications between Celtic and ROK Building Ltd (its sub-contractor), together with enforcement hearings in the TCC (two of them).

As Stuart-Smith J said in his January judgment (which was concerned with Celtic Composting Systems Ltd), the dispute is “developing into a procedural war between the parties”. Fertile ground indeed (if you will pardon the pun). Continue reading →