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The Construction Act came into force on 1 May 1998. Over the last, at least seven years, there has been significant debate over amending it.
“Laws are like sausages. You should never watch them being made” - Otto von Bismark.
Some of us have been working with BIS (or whatever they are called this week) both on the original Construction Act and the recent amendments to it in the Local Democracy, Economic Development and Construction Act 2009.
The extent to which Adjudicators may take the initiative in ascertaining the facts and the law, and the ground rules for doing so, has been the subject of two recent Scottish Court of Session decisions.
Most of you will be aware of the phrase concerning a tribunal “going off on a frolic of its own”, which, in the context of adjudication, is a reference to an adjudicator using his or her own evidence to determine a dispute.
The recent TCC judgment in De Beers v Atos, by Mr Justice Edwards-Stuart, referred to a ‘pet subject’ of mine; ‘Concurrent Delays’.
In the case of CN Associates (A Firm) –v– Holbeton Limited, CN Associates (“CN”) sought to summarily enforce the decision of an adjudicator.
The November 2010 edition of the newsletter contained a thought provoking article reviewing the decisions in Cantillon, Quartzelec and Pilon and questioned whether it is desirable for a Responding Party to be able to raise any defence in response to an adjudication referral.
Hearings or meeting are an integral part of almost all dispute resolution processes, particularly where evidence is to be given orally and tested by cross examination or questioning.