Adjudication practitioners sat up and took notice of one judgment earlier this year: Edwards-Stuart J’s decision in Yuanda (UK) v WW Gear. (He held that a Tolent clause in the parties’ contract fettered a party’s right to refer a dispute to adjudication “at any time“, which conflicted with section 108 of the Construction Act 1996.)
At the time, we wrote:
“Although it is arguable that it was decided on its facts, [the judgment] has the potential to overturn ten years of adjudication practice on clauses that deal with the costs of adjudication.”
and Matt Molloy commented that:
“I doubt many in the construction industry would disagree with Edwards-Stuart J. HHJ Mackay’s decision in Bridgeway v Tolent has been turned on its head after 10 years.”
Edwards-Stuart J has now indicated that his judgment is the subject of an appeal (see paragraph 21 of his judgment in Anglian Water Service v Laing O’Rourke Utilities).
If that is the case, and it is the Tolent clause point that is the subject of the appeal (the judgment also looked at section 3 of UCTA and interest on the late payment of debts), when it comes to agreeing who will pay the costs of an adjudication, those involved in adjudication may find themselves back where they started (until the amendments to the Construction Act 1996 come into force, and those still look some way off).
We will keep you posted.