The question of whether a party can be prevented from referring a dispute to adjudication is one that the courts have had to deal with only infrequently.
I became aware of a complaint recently regarding alleged bias against an adjudicator. One school of thought is that such complaints should be left for the Court to deal with. However, the substance of the compliant was based on adverse comments made in a previous adjudication (by the adjudicator against the complainant) such that the complainant considered that adjudicator should not have accepted a subsequent appointment involving the complainant. I can therefore perhaps understand why the nominating body became involved in an investigation of the complaint.
It sometimes seems to me that we are in the Mad Hatter’s World (or, maybe even worse, the Dormouse’s World!) when we deal with the payment provisions of the new ‘Construction Act’ (i.e. the Local Democracy, Economic Development and Construction Act, 2009). Why has something that should be so simple become so complex?
Qatar is now the richest country in the world by GDP per capita; which stands at a staggering USD102,000.00. In the last three decades it has developed at break-neck speed and has embarked on one of the most ambitious infrastructure procurement plans that the world has seen – earmarking a capital spend of in the region of USD 220bn over the next ten years (excluding oil and gas projects).
Some of you will be aware of the judgment of the Court of Appeal published last November. This case, Andrew Mitchell MP v News Group Newspapers  EWCA Civ 1537, concerned the failure the solicitors of Andrew Mitchell to file a costs budget on time. The budget was projected to be approximately £500,000. By reason of the failure to file on time costs which would be granted to Andrew Mitchell would be limited to the court fees only.
The entire rationale for adjudication is that it is intended to produce a “rough and ready” brand of justice for the construction industry. In theory, at least, an adjudicator cannot finally determine the rights of the parties but is instead intended to provide a decision by which disputes can be determined on a provisional interim basis.
The theme for this quarter’s edition of the newsletter – by accident rather than design – is ‘underhand tactics’ - whether through the vexatious use of multiple adjudications, breaches of natural justice, bias or just plain corruption.
This is my sixth article on the basics of adjudication for lay users. In this article, I am going to try to demystify issues surrounding Meetings, Site visits and Witnesses.
The resolution of disputes in both the domestic and international arenas has, over the years, relied heavily upon non-court processes, increasingly in recent times. The costs incurred by the parties involved in dispute resolution can be considerable, with relationships between them also being put at risk. The focus has, however, increasingly switched in more recent years from binding resolution by tribunal decision imposed upon parties, to a more co-operative and non-confrontational approach.
I recently became aware of a complaint about an adjudicator who had not conducted a site inspection in a case that involved allegations of defective workmanship. This led me to ponder the question of whether an adjudicator’s decision not to conduct a site meeting or site inspection could be a valid cause of complaint.
Ladies and gentlemen of the Adjudication Society, some of us are pleased that we have avoided the cold, frost and snow of our usual winters. However there are others whose homes are located within flood planes or areas generally available to damage from river or sea who are in an extremely unfortunate position. If there is anything that members of the society consider that they can do to assist those who are in dire straits then it might be possible for regional or branch event to host some relevant activity.
In 1996 Parliament passed the Construction Act. This included a requirement that all construction contracts contained provisions allowing either party to call for adjudication of any dispute arising between the parties. Any construction contract thus had to include appropriate clauses or, if it did not, then the Scheme for Construction Contracts would apply – thus imposing conditions.
The Society has held two important meetings since our last newsletter was compiled; in November 2013 the twelfth annual conference was held in conjunction with the Association of Independent Construction Adjudicators and in January 2014 the second conference of the Adjudication Society for the Ireland Region was convened. The good news is that those members who were unable to attend either of these (very successful) events, have not missed out entirely because Martin Potter and David McNeice have kindly reported on events in articles which are included in this edition.
For the adjudicators reading this article, I appreciate life is challenging. It is littered with difficulties of varying proportions and consequences; perceived bias; jurisdiction challenges; going outwith your jurisdiction; not exhausting your jurisdiction; breaches of natural justice; and all the usual “procedural” hurdles that have to be navigated.
As of 29 July 2013 the President of Ireland signed the Construction Contracts Act 2013 (“The Act”), enacting the long awaited legislation seeking to improve cash flow for sub-contractors within the construction industry and finally bringing a statutory right of adjudication to Ireland.