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.
This is my third article on the basics of adjudication. You will recall that my aim is to put any alleged complexities of adjudication in perspective and, as far as possible, empower those of us that actually 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 process is supposed to assist construction by sorting our disputes with as little fuss as possible. It is supposed to be used by construction people who are not completely steeped in the law.
Whilst some nominating bodies distance themselves from investigating the charge out rates levied by adjudicators, complaints do arise as to the overall amount charged and/or time spent by an adjudicator in the conduct of a matter.
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).
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.
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.
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…
This is my second article reviewing the basics of adjudication. You will recall from my previous article that my aim is to put the alleged complexities of adjudication in perspective and as far as possible empower those of us that actually work in construction, and are only occasional users of adjudication, to understand and be capable of entering into and completing the adjudication process themselves without specialist advice.
Some commentators have welcomed the Court of Appeal decision in PCH v Systech and suggest that its effect will be to improve the quality of adjudication decisions. Others despair that it ignores the practicalities of this swift, rough and ready procedure. Whilst it is perhaps difficult to argue with the result on the particular facts of that case, I consider any wider application of the decision to be an unwelcome development in adjudication jurisprudence. The purpose of this article is to highlight some of the potential implications of the decision.
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.