Chairman's Notes - Hamish Lal, Akin Gump Strauss Hauer & Feld

Editors' Notes - Douglas James, Benedict Morillo, Crown Office Chambers

Women in Adjudication – Meet the ANBs - Emma Thompson, Watson Farley Williams

Women in Adjudication and the Equal Representation in Adjudication Pledge: round-up of recent events - Abigail Walker, Yelland Savage, Niav O’Higgins and Katrina Donnelly, Arthur Cox and Helena Sewell, Burges Salmon

The problem with experts - John Marshall, Fermata UK Ltd

Set off against another adjudication decision? Only in a limited set of circumstances - Emma Healiss, Keating Chambers

You wait ages for a bus then three come along at once! - John Riches

Case Notes

Hamish Lal, Akin Gump Strauss Hauer & Feld

Patently, the number of events organized by Members is growing and the intellectual life of The Society is expanding. In that context, I must thank the joint-editors of the Newsletter, Benedict Morillo and Douglas James of Crown Office Chambers who are doing an excellent job. The articles in this Newsletter are provocative and force readers to really think.  For example, John Marshall’s article The problem with experts includes the conclusion:

“The reality is that expert reports, particularly delay reports in adjudication, have deteriorated in quality over the years. Many are patently partisan and few provide the information that the adjudicator needs in a clear way.” [my emphasis]

Emma Healiss’ article Set off against another adjudication decision? Only in a limited set of circumstances explains, as the title indicates, that the decision in FK Construction Limited v ISG Retail Limited [2023] EWHC 1042 (TCC) makes clear that if a defendant in enforcement proceedings wishes to rely on a second decision to claim a set off (on the basis of the ‘third exception’), it is essential for the defendant to have commenced separate proceedings to enforce the second decision. Put another way there is a need for symmetry. The third article by John Riches You wait ages for a bus then three come along at once! undertakes a detailed analysis of serial adjudications and concludes “it does not pay to make your payment provisions too complex, inconsistent and in all probability too penal”. I should add that on Thursday 8 June 2023 the Court of Appeal heard the appeal of Sudlows Ltd v Global Switch Estates 1 Ltd [2022] EWHC 3319 (TCC) and so I expect Members will see articles on that case in the next Newsletter. 

September 13th is a key date. Siân Mirchandani KC of 4 New Square will be giving Members the Quarterly Case Law Update.  November 30th is the date for our 2023 Annual Conference.  I am pleased to see that Dominique Rawley KC, Garry Borland KC and John Trainor SC will be participating and giving attendees a comprehensive view of how adjudication and related case law has developed since the last conference in England, Scotland and Ireland. Arran Dowling-Hussey will be sharing the full conference programme shortly. 

All of us on the Committee are non-complacent and thus keen to receive views, ideas and thoughts from all Members. It is a great privilege to serve on the Committee and I would encourage all Members to have a think about whether you would like to stand for election.  A Committee gleaned from the full cross-section of the Membership is a strong successful Committee.

With all best wishes.

Hamish Lal

Douglas James, Benedict Morillo, Crown Office Chambers

The articles in this edition span several themes. 

Following on from Morwenna Crichton’s piece in our last edition, there are several reports on the energetic launches of the Women in Adjudication and Equal Representation in Adjudication Pledge across the UK and in Ireland. Emma Thompson of Watson Farley Williams reports on the Women in Adjudication’s Meet the ANBs event on 27 April 2023. Emma’s note that all the major adjudicator nominating bodies collectively agreed that there was a real need for change and much work to be done is welcome news. Abigail Walker of Yelland Savage discusses the launch of the Pledge in Scotland on 11 May 2023, including the keynote address from Lord Richardson. Niav O’Higgins and Katrina Donnelly of Arthur Cox and Abigail Walker of Yelland Savage discuss the launch of the Pledge in Ireland – they note that the event garnered a further 18 signatories to the Pledge and seven signing up to the mentoring scheme. Finally, Helena Sewell of Burges Salmon and Abigail Walker of Yelland Savage report on the ‘Meet the Adjudicator event in Bristol on 20 June 2023. Further information on the Women in Adjudication initiative and the Pledge is on the Society’s website. 

John Marshall of Fermata considers the vexed role of experts in adjudication – in particular the problem that ‘freestyling’ away from the requirements of the Civil Procedure Rules can lead to reports that are theoretical, non-committal or even disingenuous. 

Emma Healiss of Keating Chambers explores the issue of the very limited circumstances in which one adjudication decision can be set off against another – in the context of the recent decision in FK Construction v ISG Retail.  

Serial adjudication is also a theme of John Riches' consideration of the Court of Appeal’s decision on payment notices in A&V Building Solutions v J&B Hopkins.  

The TCC remains busy with adjudication work, and Fenwick Elliott has distilled the two cases that Emma Healiss and John Riches touch on. Thanks go to Nicholas Gould, Laura Bowler, Aurelia Russo and Oliver Weisemann for their work in compiling the notes. 

The articles on Sudlows v Global Switch Estates 1 and Northumbrian Water v Doosan Enpure that were promised in the Spring remain in production and so will be pushed back to the Autumn, but Fenwick Elliott’s case notes are on the website in the meantime. 

Please do get in touch with us if you would like to contribute an article to the newsletter: djames@crownofficechambers.com and bmorillo@crownofficechambers.com. All contributions are welcome and we are happy to discuss any ideas for articles you might have. 

We wish you a pleasant summer.

Douglas James
Benedict Morillo

Emma Thompson, Watson Farley & Williams 

Emma Thompson of Watson Farley Williams reports on the Women in Adjudication’s Meet the ANBs event on 27 April 2023

Read the full article

Abigail Walker of Yelland Savage, Niav O’Higgins and Katrina Donnelly of Arthur Cox and Helena Sewell of Burges Salmon discuss the successes of three Equal Representation in Adjudication Pledge events in Edinburgh, Dublin and Bristol.

Read the full article

John Marshall, Fermata UK Ltd

John Marshall of Fermata considers how the lack of formal rules for expert reports in an adjudication setting – and adjudicators’ reluctance to appoint their own experts – can lead to reports that are theoretical, non-committal or even disingenuous.

Read the full article

Emma Healiss, Keating Chambers

Emma Healiss of Keating Chambers explains the reaffirmation, in FK Construction v ISG Retail, of the very limited circumstances in which one decision can be set off against another – and the practical requirements to fulfil them.

Read the full article

John Riches

John Riches discusses the perils of serial adjudication and overly complex payment provisions, in the context of the Court of Appeal’s decision on payment notices in A&V Building Solutions v J&B Hopkins.

Read the full article

Case Note Contributors: Nicholas Gould, Aurelia Russo and Oliver Weissman, Fenwick Elliott

J&B Hopkins Limited v A&V Building Solution Limited

Reference: [2023] EWHC 301 (TCC)
Date: 15 February 2023
Judge: Roger Ter Haar KC sitting as a Deputy High Court Judge
Keywords: Final Account; TCC Pre-Action Protocol; True Value; Overpayment; Natural Justice; Jurisdiction

Read the full case note

FK Construction Limited v ISG Retail Limited

Reference: [2023] EWHC 1042 (TCC)
Date: 5 May 2023
Judge: Mrs Justice Joanna Smith DBE
Keywords: Adjudicators' decisions; Construction projects; Discretion; Enforcement; Set-off; Sub-contracts; Summary judgments; Validity

Read the full case note