One of the key changes to Part II of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”) is that construction contracts no longer have to be “in writing” to fall within its remit.
One complaint that arises from time to time is an allegation that an adjudicator has a close relationship with one of the party representatives.
The most provocative amendment made by the “new” Construction Act is, of course, the repeal of the Section 107 restriction that previously meant that only contracts “in writing or evidenced in writing” counted as construction contracts.
Whilst the amendments to the adjudication provisions of the Housing Grants, Construction and Regeneration Act 1996 are interesting, the changes to the payment provisions will have a more significant impact on the industry – both on contractors as they try to grapple with the various different notices and on lawyers, adjudicators and judges dealing with the inevitable payment disputes that will arise.
It is fitting that the introduction of the amendments to statutory adjudication in England, Wales and Scotland should coincide with a changing of the guard amongst this newsletter’s editorial team.
A round up of news
“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.
Isn’t it annoying when you see a shop put up its Christmas display in June. At first, there a brief feeling of excitement whilst everyone remembers how much fun Christmas is (or should that be was when you were a kid). If it’s a particularly interesting display, it may even get tongues wagging for a few weeks. After a while, however, people are bored of it. The run up to Christmas loses its lustre because the first two weeks of December are indistinguishable from the preceding two months.
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.
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.
The recent TCC judgment in De Beers v Atos, by Mr Justice Edwards-Stuart, referred to a ‘pet subject’ of mine; ‘Concurrent Delays’.
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.
A conundrum that has often arisen upon projects administered under the Engineering and Construction Contract upon which I have been involved concerns where the dividing line falls between the actual Defined Cost of the work already done and the forecast Defined Cost of the work not yet done, particularly when the compensation event is assessed retrospectively by an adjudicator.
In the case of CN Associates (A Firm) –v– Holbeton Limited, CN Associates (“CN”) sought to summarily enforce the decision of an adjudicator.