Articles in the January 2022 Newsletter

Displaying 14 items

Notes from the Chairman, Hamish Lal

Notes from the Editor, Daniel Churcher.

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.

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.

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.

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.

"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’.

[2021] EWHC 2110 (TCC)
Key terms:
Adjudicators' decisions; Collateral warranties; Construction contracts; Enforcement; Jurisdiction; Stay of execution
[2021] EWHC 1337 (TCC)
Key terms:
Adjudication; Adjudicators' powers and duties; Bad faith; Design and build contracts; Fees; Jurisdiction; Resignation; Terms and conditions; Unfair contract terms
[2021] EWHC 2441 (TCC)
Key terms:
Adjudicators' decisions; Adjudicators' powers and duties; Defences; Design and Build Contract; Interim payments; Natural justice; Notices; Severability; Validity
[2021] EWHC 1034 (TCC)
Key terms:
Adjudicators' decisions; Estoppel; Jurisdiction; Merger
[2021] EWHC 1290 (TCC)
Key terms:
Jurisdiction; Successive Adjudications; Interim Payment; Rectification; Defects; requests for time to pay
[2021] EWHC 804 (TCC)
Key terms:
Jurisdiction; Notice; Service; NEC; Dissatisfaction; Part 8 Claim; Liquidated Damages.
[2021] EWHC 2502 (TCC)
Key terms:
Adjudication; Completion; Contract terms; Dates; Design and build contracts; Enforcement; Final payments; Interpretation; Notices