REUTERS | Kim Hong-Ji
September 24, 2013

Read all about it: adjudicator didn’t commit a serious breach of the rules of natural justice

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 J found that the adjudicator had committed a serious breach of the rules of natural justice by deciding a case on the basis of a clause that neither party had mentioned or even argued. At the time, I stressed that such cases are relatively rare, and that commentators, parties, and so on, should not get carried away on a wave of hysteria. The defendant in CG Group Ltd v Breyer Group Plc raised similar arguments, but this time Akenhead J found that the adjudicator had not breached the rules of natural justice. Continue reading →

REUTERS | Tobias Schwarz
September 17, 2013

Are adjudicators applying the “new” payment regime correctly?

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 a moan and claimed that some adjudicators were not observing the requirements in the Construction Act 1996 regarding payment notices and pay-less notices. Given Jack and Jill’s moans and the fact that we’re almost two years into the new payment regime, I thought that it was a good opportunity to review how the new payment regime is working.

Continue reading →

REUTERS | John Kolesidis
September 11, 2013

Collateral warranties and the Construction Act – a nasty surprise

After nearly 30 years in the construction law game, I should no longer be surprised when an unexpected decision comes along. But Akenhead J’s judgment in Parkwood Leisure Ltd v Laing O’Rourke Wales & West Ltd made me sit up and draw breath.

Last week’s Practical Law legal update notes that the decision will be a “surprise to most practitioners”. With great respect to the learned judge, I would go further and say that it is simply wrong. It is also likely to have highly undesirable ramifications for the negotiation of collateral warranties in future. Continue reading →

REUTERS | Jumana El Heloueh
September 3, 2013

Bias revisited – keeping your own counsel

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 of Appeal. Lady Arden gave the leading judgment and it makes interesting reading, not least because she concludes that the judge should have recused himself because there was apparent bias. Continue reading →

REUTERS | Fabrizio Bensch
September 2, 2013

TCC decides that tenant collateral warranty is subject to statutory adjudication

In Parkwood Leisure Ltd v Laing O’Rourke Wales & West Ltd, Akenhead J was asked to determine whether a collateral warranty was a “construction contract” for the purposes of Part II of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996) and therefore subject to statutory adjudication.

The collateral warranty did not refer to adjudication but the tenant beneficiary (Parkwood) alleged that the warranty’s wording made it a construction contract that entitled Parkwood to bring a defects claims direct against the contractor in adjudication. Continue reading →

REUTERS | Herwig Prammer
August 28, 2013

August 2013 digest: Ask and the Ashes

Lewis Carroll, Alice’s Adventures in Wonderland:

“I have answered three questions, and that is enough’, said his father; ‘don’t give yourself airs! Do you think I can listen all day to such stuff?'”

July 2013 may have been the third warmest and third sunniest on record (and the driest since 2006), but it all went with a bang at the beginning of August, with the return of our more familiar “summer” weather. The cloud and rain definitely had an impact on the outcome of the third test at Old Trafford, stopping play and allowing England to retain the smallest trophy known to sporting types before the start of the shooting season. The Ashes wasn’t over though and, in the fourth test, a demon bowling display from Stuart Broad meant we won the series outright. Even then there was more to come, with the fifth a nail-bitter, finishing in a draw with just four overs left to bowl. Continue reading →

REUTERS | Paulo Whitaker
August 20, 2013

Experts again

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 judgment hadn’t mentioned the liability concessions made by the architect and contractor before and during the trial, I’d have known the museum won without having to turn to the end to find out that it had been awarded damages of over £1.1 million.

Are you wondering why? Continue reading →