It is not often that the subject of penalty clauses rears its head in higher courts; the law has appeared pretty settled on the subject for years, if not decades. It is interesting then, that not one but two recent cases have been the subject of appeals (heard together) in the Supreme Court on this very subject:  UKSC 67.
We know that the Holy Grail, in the construction industry, is getting paid. Are we any closer to finding this legendary chalice and getting the money?
This is the third article in the series concerning the implications for adjudication of the introduction if BIM into projects.
The fourteenth annual conference of the Adjudication Society, held in conjunction with the Association of Independent Construction Adjudicators on the topic of “The rising costs of Adjudication and how to reduce them”, was held at the Radisson Blu Portman Hotel, London on 5th November 2015 in front of over 90 delegates.
The Holy Grail is getting paid in the construction industry.
Adjudication has been with us for nearly 20 years. It has generated a fair amount of case law. Yet Aspect v Higgins is the first time that adjudication has been considered at the highest level. Jennie Gillies, in the editorial for the September 2015 newsletter, referred to some of the consequences of the Supreme Court's decision. In this article I explore those consequences further and look at practical steps that both parties to a construction dispute might take to protect their interests.
I heard of a grumble recently regarding the use of assistants by an adjudicator.
The recruitment of the Panel of adjudicators in the Republic of Ireland, which has been referenced in this newsletter before, is presently ongoing. Dr Nael Bunni, a well known Irish arbitrator and a Door Tenant at 39 Essex Chambers in London, has already been announced as Chair of the Panel of Adjudicators. His three-year term runs from July 2015. The application deadline for those who wished to be considered for appointment to the Panel was in mid September and a number of stages of the competition have been concluded at this stage, including shortlisting and interviews of candidates, although the final appointment of adjudicators to the panel has not yet occurred and there is no clear timetable for the conclusion of this process.
The wait for the commencement of the Construction Contracts Act 2013 continues. As has been set out before in this newsletter, the legislation was introduced as a private member's Bill back in 2010. Some of the reasons for the delay to date have been set out previously, and do not need to be repeated here. Whilst concerns held by certain observers that the legislation would languish on the statute books and not become operational have receded, the belaboured manner in which progress has been made in seeing the Act go live is still causing considerable frustration.
The Committee is continuing to make progress on our plans for the year. We plan to launch the new website in time for the annual AGM and conference, so do remember to email me any thoughts you have so we can incorporate them.
We have decided to make some changes to the annual conference. The most significant is that we will now hold it every two years in London and in a region in the intervening years. Hopefully this will address members’ concerns that the Society is too London focused.
In considering the relationship between BIM and the standard contract documents we come up against a number of issues. First, what status should we attribute to our BIM protocols and procedures? Secondly, what status should be attributed to the information produced by those procedures? and Thirdly, what should we say about the resolution of inconsistencies and ambiguities within the information produced for BIM or between that information and other information or procedures?
I usually prefer to use this editorial slot to introduce readers to the content of the newsletter. In this, my final newsletter, I am however, going to depart from the norm and use this editorial to focus on case law.
Adjudication under the Construction Acts(s) in the UK is approaching its 20th anniversary and it can be anticipated, in celebration of that august event, that many reflections upon its efficacy will soon be put into print. So here, somewhat in advance of the auspicious date, are musings that come from a somewhat different perspective. That of the adjudicator fraternity. They are personal views, of course, but it is anticipated that many (or most, or indeed all) adjudicators will subscribe to them.
It continues to be our experience and I am sure that of many reading this article that Contractors in the midst of pulling out all the stops to win a Contract and concentrating on the two features most coveted by Clients i.e. time and money, that the Contract document eventually signed up to is not given the scrutiny it should be. It is all too often lost in a drawer or cabinet and is generally brought back into the light of day as a reactive response to an issue.
Following the TCC’s decision in ISG Construction Ltd v Seevic College  EWHC 4007 (TCC) it did not take long for the ingenuity of practitioners to come to the fore in seeking to find a solution to what could be perceived as one contracting party gaining an unfair advantage as a result of the other’s failure to operate the payment provisions contained in a contract.