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.
As some of you will know the introduction of a statutory basis for adjudication in the Republic of Ireland has had a long gestation. Now, the Construction Contracts Act 2013 (“the Construction Contracts Act”) has been enacted in the Republic on the 29 July 2013.
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.
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.
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.
The process of obtaining the services of an adjudicator has, from the very start of statutory adjudication in the UK, been a rather fraught affair. Throughout the period from 1996 to the present day, the quality of adjudicator performance has, understandably, been a matter of concern to all involved; parties, their representatives, adjudicator nominating body (ANB) administrators and to adjudicators themselves.
Much has already been written about the 2012 decision of the Court of Appeal in PC Harrington v Systech. Some have suggested it will lead to even more challenges to the jurisdiction and, according to some (ill informed) observers the Systech case has been cited as authority that there is no need to pay an adjudicator who exceeds his jurisdiction. However, this was not the decision of the Court of Appeal…