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

Editorial - Daniel Churcher, 4 Pump Court

Experiences as a new adjudicator - Andrew Smith, Andrew D Smith Ltd

One or more disputes - David Sawtell, 39 Essex Chambers

What costs are actually prohibitive to adjudication? - Dean Sayers, Sayers Commercial Ltd

Similar but increasingly different? - Arran Dowling-Hussey, 4-5 Gray’s Inn Square

Minefield! - John Riches, Henry Cooper Consultants Ltd

Case Notes

Hamish Lal, Akin Gump Strauss Hauer & Feld

Q3 has been good for The Society.  On 23 September, Lindy Patterson QC and Claire King delivered an excellent Adjudication Case Law Update No 2. This looked at five key cases: Toppan Holdings / Abbey Healthcare v Simply Construct [2021] EWHC 2110 (TCC); Davis Construction (South East) Limited v Sanzen Investments Limited [2021] EWHC 2216 (TCC); Global Switch Estates Ltd v Sudlow Ltd [2020] EWHC 3314; Downs Road Development LLP v Laxmanbhai Construction (UK) Limited [2021] EWHC 2441 (TCC); and CC Construction Limited v Raffaele Mincione[2021] EWHC 2502 (TCC).  For those who missed the Update you can find it here.
 
On 18 November, The Society hosted the Annual Conference 2021.  There was, for obvious reasons, no Annual Conference in 2020 and it appears that we were fortunate that omicron had not seeded in the United Kingdom in early November.  Sadly, a number of Members were unable to attend the Conference due to the Pandemic and I apologise that the Conference was not a hybrid-event.  The Conference Committee had looked into this but sadly, it was simply not feasible.  The Conference Papers are on the website but of course, they do not replace the live discussions and learning.  I must congratulate and thank Theresa Mohammed, Richard Booth and Arran Dowling-Hussey who curated and managed the Annual Conference.  
 
We have an excellent Committee: There is tangible energy and determination.  In 2022, we will work hard to re-connect with Members and continue the work started in 2021. My very best wishes for this New Year.

Daniel Churcher, 4 Pump Court

Welcome everyone to the Autumn 2021 issue of the Adjudication Society Newsletter. We have a bumper edition with some excellent articles. Adjudication case law continues to develop at a breakneck pace and Fenwick Elliott provide readers with the usual crop of comprehensive case notes. Andrew Smith reflects on his (so far, positive) experiences as a new adjudicator. David Sawtell considers recent case law concerning when a party will be found to have referred multiple disputes, thus depriving an adjudicator of jurisdiction. Dean Sayers considers the oft-forgotten question of costs in adjudication.
 
Arran Dowling Hussey of 4-5 Gray’s Inn Square provides a well-timed follow-up to  Niav O’Higgins’ article in the last issue concerning the development of adjudication in Ireland. As Niamh predicted, the jurisdictions continue to diverge in some respects but remain aligned in others. It is to be hoped that good ideas will continue to be exchanged across the Irish sea, to the benefit of adjudicators and parties everywhere.
 
Finally, John Riches continues his series of articles, henceforth to be known as Payment Watch, addressing what he considers to be the next battlefront in payment disputes: when is a payment application or payment notice not a “genuine” reflection of the sum considered due?

Many thanks to contributors and I hope readers enjoy their contributions. Any articles for the next issue gratefully received by end of February 2022 please. All that leaves is for me to wish everyone a Happy New Year!

Andrew Smith, Andrew D Smith Ltd

As most adjudicators will know, the road to getting your first appointment can be long and winding. I have had a keen interest in the adjudication process since the implementation of the statutory regime in 1998, and as a recently qualified Chartered Quantity Surveyor it was then that my ambition to become an adjudicator began.

Read the full article

David Sawtell, 39 Essex Chambers

A pair of recent decisions in the High Court this year have again turned on the question of whether only one dispute was referred to adjudication. Once again, Akenhead J’s decision in Witney Town Council v Beam Construction (Cheltenham) Limited [2011] EWHC 2332 (TCC); 139 ConLR 1 (‘Witney Town’) has been re-visited. In both decisions, the question of whether there was a single dispute referred, or more than one dispute, was answered broadly. In many ways, this is to be welcomed: as confirmed by Coulson J (as he then was) in Deluxe Art & Theme Limited v Beck Interiors Limited [2016] EWHC 238 (TCC); 164 ConLR 218, it is normally only possible to refer a single dispute to adjudication: if the adjudicator deals with more than one dispute, it will not be enforced unless it can be saved by way of severance.

Prater Ltd v John Sisk & Son (Holdings) Ltd [2021] EWHC 1113 (TCC) and Quandro Services Ltd v Creagh Concrete Products Ltd [2021] EWHC 2637 (TCC) are classic examples of the approach that, if there is a dispute as to how much money is owed from one party to the other, the court will be slow to allow technical arguments to prevent a successful enforcement. The question is raised, however, as to when the Court of Appeal will impose limits on this expansive interpretation.

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Dean Sayers, Sayers Commercial Ltd

I was very recently part of a panel discussing the topic of 'Controlling Costs By Capping Fees of Tribunal Members' at the UK Adjudicators Annual London Conference 2021. I thought I would write and share a very brief article on some of the points I raised during my presentation.

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Arran Dowling-Hussey, 4-5 Gray’s Inn Square

Some but not all adjudicators, party representatives and parties may be involved in adjudications both in the United Kingdom and the Republic of Ireland. Those who primarily do U.K work of this type may find it helpful to note that the assigned adjudication judge in Dublin, Mr. Justice Garrett Simons, has recently cautioned that case law from England and Wales can be of assistance when interpreting the Irish legislation (2013 Construction Contracts Act which commenced as of July 25, 2016) but cannot be ‘read across.’ This approach no doubt recognises that whilst there are some broad general similarities in the UK and Irish legislation it does differ in a number of significant respects.

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John Riches, Henry Cooper Consultants Ltd

"Soon you will walk across
this field. I will educate you
to step here and step there,
to avoid the hidden dangers
beneath the grassy slopes
and native flowers."
Walking Through Minefields (William A Poppen January 2013)

Maybe an unfortunate analogy, the minefields in this poem versus the minefields that us construction folk face with the broken payment legislation that we need to negotiate with every day of the week. The latest trap is ‘genuine’.

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Case Note Contributors: Nicholas Gould, Laura Bowler, Ruth Leake, Catherine Simpson, Aurelia Russo, Jake Wright (all of Fenwick Elliott)

Transport for Greater Manchester v Kier Construction Limited

Reference: [2021] EHWC 804 (TCC)
Date: 31 March 2021
Judge: Mrs Justice O’Farrell DBE
Keywords: Jurisdiction; Notice; Service; NEC; Dissatisfaction; Part 8 Claim; Liquidated Damages.

Read the full case note

Lewisham Homes Ltd v Breyer Group PLC

Reference: [2021] EWHC 1290 (TCC)
Date: 14 April 2021
Judge: Mr Justice Waksman
Keywords: Jurisdiction; Successive Adjudications; Interim Payment; Rectification; Defects; requests for time to pay

Read the full case note

Delta Fabrication & Glazing Limited v Watkin Jones & Son Limited

Reference: [2021] EWHC 1034 (TCC)
Date: 30 April 2021
Judge: Her Honour Judge Sarah Watson
Keywords: Adjudicators' decisions; Estoppel; Jurisdiction; Merger

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Davies & Davies Associates Limited v Steve Ward Services (UK) Limited

Reference: [2021] EWHC 1337 (TCC)
Date: 19 May 2021
Judge: Mr Roger ter Haar QC
Keywords: Adjudication; Adjudicators' powers and duties; Bad faith; Design and build contracts; Fees; Jurisdiction; Resignation; Terms and conditions; Unfair contract terms

Read the full case note

Toppan Holdings Limited, Abbey Healthcare (Mill Hill) Limited v Simply Construct (UK) LLP [2021]

Reference: [2021] EWHC 2110 (TCC)
Date: 27th July 2021
Judge:. Martin Bowdery QC
Keywords: Adjudicators' decisions; Collateral warranties; Construction contracts; Enforcement; Jurisdiction; Stay of execution

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Downs Road Development LLP v Laxmanbhai Construction (UK) Limited

Reference: [2021] EWHC 2441 (TCC)
Date: 7 September 2021
Judge: HH Judge Eyre QC
Keywords: Adjudicators' decisions; Adjudicators' powers and duties; Defences; Design and Build Contract; Interim payments; Natural justice; Notices; Severability; Validity

Read the full case note

CC Construction Limited v Raffaele Mincione

Reference: [2021] EWHC 2502 (TCC)
Date: 15 September 2021
Judge: HH Judge Eyre QC
Keywords: Adjudication; Completion; Contract terms; Dates; Design and build contracts; Enforcement; Final payments; Interpretation; Notices

Read the full case note