For many years now, the Technology and Construction Bar Association (“TECBAR”) has administered ADR panels of its members in the fields of arbitration, adjudication, mediation and dispute resolution boards. Construction adjudication, of course, has been a central feature of ADR for 15 years and as members of the Adjudication Society are well aware there have been a large number of TCC judgments in adjudication enforcement proceedings (which have both simplified the workings of the process in some areas and arguably complicated it in others).
The executive committee is settling in well. I am still Acting Hon Sec; any volunteers to act as Hon Sec are welcome to email me. Richard Booth has been confirmed as the member of the Committee to replace the very long serving Tim Willis as regional coordinator. Our deep and heartfelt thanks go to Tim for his very hard work. Susan Francombe has very kindly agreed to take the very unofficial role of AGM coordinator. Many thanks, Susan. Hamish Lal continues as Treasurer and reports a very stable financial position.
The Brothers Grimm collection of Fairy Tales includes a tale about a tailor with “seven with one blow” embroidered on his belt, to explain that he had killed several flies with one stroke when they attacked his jam. This embroidery was later mistaken by a giant to signify his killing prowess, resulting ultimately (with some cunning trickery) in the giants all fleeing in fear of the tailor.
The focus of this quarter’s newsletter is upon the Referral process itself. In the third of James Golden’s excellent Back to Basics series, readers will find a useful guide and refresher to the process by which parties can get their dispute into the hands of an adjudicator. This is a timely article coinciding as it does with the re-launch, during this August, of the Technology and Construction Bar Association’s Adjudication panel; details of this, together with the 2012 TECBAR Adjudication Rules, can be found in Calum Lamont’s article.
I came across a complaint from a party who, in their eyes at least, had “won” an adjudication, but couldn’t understand why the adjudicator had apportioned liability for some of his fees to them. It transpired that the adjudicator had not given an explanation for his finding which in turn led onto a train of enquiry as to whether the adjudicator had erred.
The Adjudication Society has recently published four additional Guidance Notes. These are:
1. Guidance Note: Construction Contracts and Construction Operations;
2. Guidance Note: Adjudicator’s Liens;
3. Guidance Note: Natural Justice;
4. Guidance Note: Construction Contracts & Construction Operations.
Progress on the Irish Construction Contracts Bill 2010 comes sporadically rather than consistently. When passed, it will likely attain a record for the longest period between introduction in the Oireachtas (parliament) and signature by the President. After almost twelve months where the Bill failed to advance, the government published its proposed amendments with just a week's notice before the relevant committee considered them.
There is a (still) new executive committee. Theresa Mohammed has retired through pressure of work as honorary secretary and I am assuming that role protem; any volunteers are welcome to email me!
It has generally been accepted that only one dispute can be referred to adjudication. Although the court has generally been amenable to finding that multiple disputes have not been referred, there have been cases where a challenge on this basis has succeeded.
The extent to which that approach is correct has been opened up by the recent decision of Mr Justice Ramsey in Willmott Dixon v Newlon  EWHC 798 (TCC). However, less than a month later, Mr Justice Akenhead put forward a contrary view in TSG v South Anglia  EWHC 1151 (TCC).
When Glenn Godfrey and I first turned our minds to the content of this quarter’s newsletter it appeared that something rather unusual might have just taken place. In April, Mr Justice Ramsey indicated (albeit obiter) that there might, in some instances, be an entitlement to refer multiple disputes to adjudication. This would certainly be something of a dramatic change. In a blink of an eye, however, that possibility was extinguished by Mr Justice Akenhead. Details of these decisions can be found both in case note corner and in an article by Adam Temple discussing both cases.
Payment and adjudication in the Australian construction industry is governed by individual State and Territory legislation. Such legislation in Australia commenced on 26th March 2000, in New South Wales. Five States, the Northern Territory and the Australian Capital Territory (“ACT”) followed over the years, each of which has its own disparate security of payment legislation. Of the fourteen or so pieces of security of payment legislation internationally, eight are within Australia.
There is now a new executive committee for the society: Edward Quigg is senior vice-chairman, Tim Willis is junior vice-chairman and Theresa Mohammed has become honorary secretary. Susan Francombe has also kindly agreed to coordinate matters relevant to the annual general meeting whilst Richard Booth has joined the committee and has agreed to take over from Tim Willis in the arduous role of regional coordinator. Hamish Lal continues as treasurer and reports a very stable financial position.
Unless you found yourself marooned on a desert island during 2012, it will not have passed your attention that the whole of the construction world suddenly got very excited in August. Contractors started to clink champagne glasses in celebration, but it had absolutely nothing to do with Team GB’s success at the Olympic Park. Indeed, whilst the contractors were celebrating, employers had started to panic. The reason…? Rumours were spreading that the TCC had given the green light to global claims.
A recent complaint I came to hear about concerned the question of whether the adjudicator should have taken a more active role in calling a halt to and/or limiting the number of submissions one party makes. The complaint was that the adjudicator did little to control the number and extent of submissions made by the parties.
If there is one theme which runs through the articles which feature in this quarter’s newsletter it is that the world is one surprising place.