Chairwoman's Notes - Susan Francombe

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

New Mentoring Schemes - Morwenna Crichton, Yelland Savage

The 2023 Construction Adjudication Report: Trends and room for improvement? - Claire King, Fenwick Elliott

When will bias prevent an adjudication decision from being enforced? - Douglas James, Crown Office Chambers

Adjudicator Spotlight - Amy Bondczyk, Kevin Madden, Caroline McDermott and Sean Smylie

Case Notes

Susan Francombe

As the new Chair of the Adjudication Society, it is a great pleasure to introduce the Winter edition of our newsletter.

Outgoing Chairman Hamish Lal with Susan

Since the last edition the Society has held several events. Our 9th Adjudication Case Law Update webinar was presented by Craig Morrison of Pinsent Masons. Covering seven recent cases it gave a valuable summary and raised several points to think about. If you missed it, the recording can be found in the members-only section of our website.

Our Practical Workshop on evidence was run under Chatham House rules, giving the attendees the opportunity to talk freely without being on the record. So, all I can tell you is that you missed an informative and lively debate with some interesting thoughts on dealing with without prejudice correspondence.

We had another successful sell-out Annual Conference. Thanks go to Arran Dowling-Hussey for organising this and collating a fascinating and varied mix of speakers and panels. This was his last event as conference organiser and his hard work over the years is very much appreciated.

The opening address was given by Lubna Shuja, the Immediate Past President of The Law Society. She reflected on some of the key issues and challenges that the wider legal profession faces, including the lack of investment into court infrastructure, the planned changes to the Arbitration Act 1996 and the handling of low-value disputes.

An update of the key cases in 2023 covering the jurisdictions of England and Wales, Ireland and Scotland was presented by Dominique Rawley KC, John Trainor SC and Garry Borland KC. This gave a fascinating insight into the slightly different approaches taken by each jurisdiction.

For a second time the conference hosted the launch of the latest King’s College London Construction Adjudication in the United Kingdom report. Presented by Lynne McCafferty KC and Professor Renato Nazzini, this provided some interesting and thought-provoking data. One point of concern is the continued reference to perceived adjudicator bias. A copy of the report can be downloaded from our website.
 
The first set of panel sessions covered the topics of the adjudication pledge and decision writing. Hamish Lal asked his panel whether we have made real progress with the adjudication pledge. Donny Mackinnon chaired the session optimistically titled “Writing the perfect Decision”, despite all the panellists concluding there was no such thing.
 
The second panel sessions covered the topics of mentoring schemes and jurisdiction challenges. The new Adjudication Society mentoring scheme was launched in the session chaired by Katherine Butler. This provided lots of discussion about what mentors get from the process and the idea of ‘paying it back’. The jurisdiction panel considered the tactics of challenges, with the audience supplying real-life examples.
 
The Keynote Paper wrapping up the conference was a personal review of 25 years of adjudication by Mrs Justice Jefford DBE. This contained some amusing anecdotes comparing her initial thoughts on how adjudication would work and what she got right (and wrong).
 
After all that it was time for a well-earned drinks reception and the chance to chat about the day’s events.
 
One final and important part of the conference was the Society’s AGM, where the new committee was confirmed. I am looking forward to the next two years and working closely with the committee and our Honorary President, Victoria Russell.
 
I would like to end with a vote of thanks to Hamish Lal for all his hard work as Chair over the last two years. He has left the Society in a strong position with many positive initiatives and lots to carry forward.

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Douglas James, Benedict Morillo, Crown Office Chambers

Befitting an Advent party-season publication, the articles in this edition are more fancy canapé than full-on feast. 

Susan Francombe offers her first Chairwoman’s Note and a review of the Society’s recent Annual Conference. 

Regular contributor Morwenna Crichton reports on the launch of two very timely adjudicator mentoring schemes – the first a formal ANB ‘pupillage’ scheme, the second an ad-hoc scheme particularly aimed women seeking “visible female role models”.

Claire King of Fenwick Elliott distils the findings of the second KCL Adjudication Report, which was launched at the Annual Conference last month. Claire, one of the Society’s project steering committee, notes that the report offers much “food for thought” about the state of adjudication 25 years after it was introduced. She also reminds readers that the project would benefit from suggestions about what adjudication trends should be investigated: the steering committee awaits yours….

Finally, Douglas James of Crown Office Chambers explores the question of when a decision may not be enforced for bias, focusing on the recent decision in AZ v BY [2023] EWHC 2388. 

AZ is one of the cases covered by Fenwick Elliott’s pithy-as-ever Case Notes. Thanks to Nicholas Gould, Laura Bowler, Ruth Leake, Jake Owen, Oliver Weisemann and Taj Atwal for their work in compiling them. 

Spring 2024 promises much to look forward to – especially with the Supreme Court hearing in Abbey Healthcare v Simply Construct set down for January, and with the two decisions in FK Construction v ISG Retail given permission to appeal to the Court of Appeal (see June’s edition for Emma Healiss’s piece on FK at first instance). 

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! We are happy to discuss any ideas for articles you might have. 

In the meantime, we wish you a very merry Christmas and a happy and peaceful new year.

Douglas James
Benedict Morillo

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Morwenna Crichton, Yelland Savage

Two new mentoring schemes were launched at the Adjudication Society’s Annual Conference in London.

These schemes have been launched in response to feedback received at various Women in Adjudication events during the year. In particular:

• that it is difficult to get the experience needed to meet the pre-requisites to sit on adjudication panels; and
• that women wishing to become adjudicators have a lack of visible female role models. 

The two schemes are a “formal” scheme and an “ad-hoc” scheme.

Read the full article

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Claire King, Fenwick Elliott LLP

The second 2023 Construction Adjudication Report by Professor Renato Nazzini and Aleksander Kalisz of King’s College London, as sponsored by the Adjudication Society, was launched at our Annual Conference in November. Once again, it provides a comprehensive picture of adjudication in this country as well as highlighting areas for improvement. It also provides a fascinating insight into what is causing the disputes referred to adjudication.

Read the full article

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Douglas James, Crown Office Chambers

Wayne Clark looks at how disputes might be prevented in the first place, and other methods of dispute resolution other than adjudication. He considers what makes an effective negotiation strategy, the increasingly popular dispute board style of dispute resolution, and how mediators can effectively resolve disputes.

Read the full article

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The next four interviews in our series, 'Spotlighting Adjudicators', have been published in which we interview adjudicators about what they were doing previously, what they think has changed in Adjudication, and what advice they have for 'new' adjudicators. The latest four to be interviewed are Amy Bondczyk, Kevin Madden, Caroline McDermott and Sean Smylie.

Read their responses here

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Case Note Contributors: Nicholas Gould, Ruth Leake, Jake Owen, Oliver Weisemann and Taj Atwal, Fenwick Elliott

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

Reference: [2023] EWCA Civ 54
Date: 27 January 2023
Judge: Lady Justice King, Lord Justice Coulson and Lord Justice Popplewell
Keywords: Abuse of process; Adjudication; Adjudicators' decisions; Contract terms; Dates; Estoppel; Interim payments; Interpretation; Notices; Sub-contractors; Validity; Variation; Waiver

Read the full case note

Lidl Great Britain Ltd v Closed Circuit Cooling Ltd (t/a 3CL)

Reference: [2023] EWHC 2243 (TCC)
Date: 11 September 2023
Judge: His Honour Judge Stephen Davies
Keywords: Adjudicators' decisions; Conditions precedent; Construction contracts; Enforcement; Estoppel by convention; Interim payments; Natural justice; Notices; Service

Read the full case note

Alun Griffiths (Contractors) Ltd V Carmarthenshire County Council

Reference: [2023] EWHC 2269
Date: 13 September 2023
Judge: The Honourable Mr Justice Pepperall
Keywords: Adjudicator’s Decision, insolvent

Read the full case note

AZ v BY

Reference: [2023] EWHC 2388 (TCC)
Date: 27 September 2023
Judge: Mr Justice Constable
Keywords: Adjudicators' decisions; Admissibility; Bias; Enforcement; Without prejudice communications

Read the full case note

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