In Peterborough City Council v Enterprise Managed Services  EWHC 3193 (TCC), the Technology and Construction Court made an interesting observation about dispute resolution clauses: the effect of which may differ according to whether the final dispute resolution procedure is litigation and arbitration.
I saw a complaint recently regarding an adjudicator who had reached a decision in respect of a valuation dispute. The essence of the complaint was that the adjudicator had been lazy. In particular, the complainant took issue with the fact that the adjudicator had set out the reasons for his finding on each item in dispute in a schedule that was attached to the main body of his Decision. The complaint was that the reasons were too brief.
Whilst reading the James Golden’s article in the ‘Back to Basics” series, the crooning voice of Frank Sinatra popped into my head – not because of any particular likeness between James and Frank (although I have never seen the former in a trilby) but because this is the valedictory article in that excellent series and the “end is here”. As these things always seem to go, I then couldn’t shift the tune and was plagued by “My Way” for the remainder of the afternoon.
Hindsight is a wonderful thing! We are all too well aware of mistakes made on previous projects and the consequences of those mistakes, but how many of us will put that past experience to good use and learn from our mistakes?
This is my final article on the basics of adjudication. My aim is to put any alleged complexities of adjudication in perspective and, as far as possible, empower those of us that work in construction, and are only occasional users of adjudication, to understand and be capable of entering into and completing the adjudication process without specialist advice.
The change of officers and leadership is imminent. There is a division of opinion as to whether there should be physical or electronic meetings. What matters is that there should be people who are sufficiently enthusiastic to be active in branches and committees.
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 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.
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.