Practical Law

Last year I wrote about the judgment in Davies & Davies Associates Ltd v Steve Ward Services (UK) Ltd, where Roger ter Haar QC (sitting as a deputy High Court judge) granted summary judgment on a claim for payment of an adjudicator’s fees and expenses arising from an adjudication in which the adjudicator resigned prior to issuing a decision.

The matter has now come before the Court of Appeal in Steve Ward Services (UK) Ltd v Davies & Davies Associates Ltd, with Coulson LJ giving the leading judgment. The court upheld the first instance decision and also allowed the adjudicator’s cross-appeal, finding that the judge was wrong to suggest the adjudicator’s decision to resign was erroneous or that he went outside the ambit of paragraph 13 of the Scheme for Construction Contracts 1998.

I think Coulson LJ’s judgment makes some interesting points. Continue reading →

Compared to the restrictions we faced a couple of months ago with the emergence of the Omicron variant of COVID-19, it really does feel as if we are starting to return to some normality, and it was wonderful to see so many construction law professionals at the Society of Construction Law lunch in London last Friday. I had intended to read Morris J’s interesting judgment in John Graham Construction Ltd v Tecnicas Reunidas UK Ltd on the train home, but I sensibly put that off until the weekend, otherwise I fear my ramblings might have been somewhat difficult to discern.

John Graham v Tecnicas Reunidas is an interesting case because of the issues that have arisen from multiple adjudications and two arbitrations (one of which we’re told in the judgment is ongoing), and the impact of an adjudicator’s decision being overturned. Continue reading →

It might have taken a while before we started to see enforcement decisions in Ireland’s High Court arising from adjudications under the Construction Contracts Act 2013 but they now seem to be on a roll, with the latest (John Paul Construction Ltd v Tipperary Co-Operative Creamery Ltd) handed down just a few weeks ago.

This one was all about whether the adjudicator was guilty of some form of procedural unfairness, which the judge decided he wasn’t, and so enforced his decision.  Continue reading →

I appreciate that not everyone will agree but, as well as striving to get to the right answer, correctly applying the law, and so on, most adjudicators also want to provide the parties with a decision that is ultimately enforceable by the TCC. I think I also speak for most adjudicators when I say that it comes as somewhat of a relief when we read a judgment on BAILII or the like and we’ve been enforced.

But what about cases where only part of the decision is enforced, and the other part is severed? It is arguable that for the adjudicator it is, to use the language of the Black Knight in Monty Python and the Holy Grail, “just a flesh wound”. However, I can attest to the fact that it is frustrating, having been one of the first adjudicators to be severed back in 2012 in Beck Interiors v UK Flooring Contractors. I was thoroughly annoyed with myself for getting it wrong and only part of my decision was enforced (but I was assured by my peers that “tis but a scratch”).

The above background is a (very) roundabout way of introducing the topic of today’s post – severance – and, in particular, the severance in CC Construction Ltd v Mincione. I blogged about this case in October 2021, and wrote about some of the interesting aspects of the judgment that are relevant to final statement disputes under JCT D&B contracts. At the time, the judge (HHJ Eyre QC) found that the adjudicator had breached the rules of natural justice by failing to consider the set-off defence. He invited further submissions from the parties on whether he could sever the decision so that the remaining element of the sum due could be awarded. The judgment in round two was handed-down on 9 November 2021 by the same judge (who had become Mr Justice Eyre by then, and to whom I offer my hearty congratulations on his elevation). Continue reading →