When I teach the RICS training for expert witnesses, the room always goes silent when I ask whether expert witnesses should be sued if they are negligent. I then say that, unlike barristers or solicitors, they are immune from such claims.
Expert immunity may be a thing of the past if the Supreme Court upholds the views expressed by a judge who recently allowed an appeal on this point (see Jones v Kaney below). Continue reading
Are we witnessing a sea change in the Technology and Construction Court’s (TCC) approach to the enforcement of adjudicators’ decisions? Two recent TCC decisions suggest we may be. In both cases, the TCC took giant steps in developing adjudication enforcement practice. It is no coincidence that both cases were heard by Mr Justice Edwards-Stuart.
The question is, are we ready for such a big change? Continue reading
The past 18 months have been tough for the construction industry, with many existing development projects put on hold. You only have to look around any major city to see sites locked up, cranes standing still and part-built properties.
The good news is that things are slowly beginning to move again, with major developers (such as Land Securities) recently announcing that they are to press ahead with construction on several London projects that were put on hold as we went into recession.
Depending on what stage the development was at when it was mothballed, there are various issues to consider, which may make restarting construction much easier. Continue reading
I’m not telling you anything new when I say that the adjudicator’s jurisdiction lies at the heart of every adjudication. It is also fairly obvious that if the adjudicator has no jurisdiction to determine the dispute referred to him, ultimately, the parties will waste both their time and money as one party will refuse to pay up and the adjudicator’s decision will not be enforced by a court. Equally well established is the principle that adjudicators cannot make binding decisions about their own jurisdiction.
But how easy is it for the adjudicator to determine whether he has jurisdiction, even on a non-binding basis? Continue reading
I acted for the claimant in Anrik Limited v AS Leisure Properties Limited (8 January 2010, unreported). We were before Mr Justice Edwards-Stuart in the Technology and Construction Court (TCC).
Two important points arise from this case:
To what extent is a deed of novation necessary in order to novate a contract? Can there be a valid novation without a formal deed of novation?
Picture this scenario: the construction contract provides that, in the event that the parties cannot agree the identity of the adjudicator, the adjudicator will be nominated by the President or Vice President of a named adjudicator nominating body (ANB).
Given that, from 1 April 2010, the e-working pilot scheme will become permanent, allowing parties to submit claims and take subsequent steps in the litigation electronically, now seems a good time to review what we have learnt so far from the pilot.
The recently released judgment of Edwards-Stuart J in Geoffrey Osborne Limited v Atkins Rail could have a major impact upon adjudication enforcement and substantially affect the enforceability of adjudicators’ decisions.
It raises two important issues:
It seems parties are always trying to think up clever and interesting arguments to resist enforcement of an adjudicator’s decision. Often they rely on alleged breaches of the rules of natural justice, which is an amorphous term for all sorts of alleged wrong-doing. Adjudicators have to be careful, although, even when they are, it seems they still face these allegations with increasing frequency. A case in point is ROK v Celtic. Continue reading