Articles

Articles in the 2020/October Newsletter

Displaying 10 items

The Scottish Appeal Court’s decision clarifies the law in Scotland. Given that the 1996 Act applies UK-wide and the separate statutory Schemes for Scotland/England and Wales are very similar, this Scottish Appeal Court decision is also likely to be relevant to and referred to in enforcement proceedings south of the border in relation to English and Welsh adjudications.

Harry Smith of Keating Chambers kindly agreed to provide an adjudication update to members of the Adjudication Society & Chartered Institute of Arbitrators, given online on 3rd September 2020.  No recording was made, so this review is my attempt to set out the key points of the update for those interested.

COVID-19 has changed everything. The world we were living in just a few months ago has melted away and, indeed, much of it may be gone forever. The impact on our economy has been immense and no more so that in the construction industry. From the start many sites shut down, employees have been absent or laid off. Cash flow, a perennial problem, has become a deepening crisis. The signs are that things are unlikely to improve soon. COVID will be with us for months, even years, ahead. 

The last 6 months have certainly been the busiest period I have ever personally encountered in terms of adjudication proceedings.  The references to adjudication have been coming to me thick and fast since March, both as advocate and adjudicator, with little time to come up for air.  

Having recently re-decanted from my office to home for the second time in seven months, it struck me how working from home appears more “normal” than it did on 21st March 2020. It also prompted me to reflect on how differently I conduct adjudications now. For present purposes, I want to focus on three changes.

The last 6 months have certainly been the busiest period I have ever personally encountered in terms of adjudication proceedings.  The references to adjudication have been coming to me thick and fast since March, both as advocate and adjudicator, with little time to come up for air.  

Notes from our Chairman Richard Booth.

The Construction Act allows the parties to agree who should pay the adjudicator’s costs. The Scheme for Construction Contracts makes provision for the adjudicator to be paid a reasonable amount and also sets out what should happen in certain specific circumstances, for example if the parties revoke the adjudicator’s appointment.

In granting an injunction restraining the beneficiary from recovering money under the bond, the Court of Appeal said the beneficiary's call on the bond was "unconscionable" because it sought to undermine the temporary finality of an adjudicator's decision. If the beneficiary disagreed with the adjudicator's decision, he should refer the dispute to a court or tribunal under the dispute resolution clause in the applicable contract.

Matthew Thorne of 4 Pump Court answers questions from the editor on his experiences as a new(ish) TECBAR Adjudicator, and how he manages that alongside his busy practice as an advocate.