Tim Willis provides a thorough analysis of AM Construction Limited v The Darul Amaan Trust which concerned whether an employer was entitled to commence a “true value” adjudication in circumstances where it had not issued a pay less notice in respect of a default payment notice and had not yet made payment. Tim considers the jurisdictional issues which arise from this decision and how they can be addressed.
This Report has the potential to alert the adjudication community to perceived problems so it can respond to change and ensure that the current success of the process is built upon, and the process responds to wider societal changes.
A cautionary tale and a new point of law.
Whether an adjudicator correctly identifies an issue as something which he or she has jurisdiction to decide is potentially determinative of whether the decision is enforceable.
Many people in the construction industry do not have to consider how you get an adjudicator unless they are drafting the contract or a dispute arises. An adjudicator or possible adjudicators can be named in the contract or agreed by the parties once the dispute has arisen. Alternatively they can be selected by a nominating body.
The construction industry has become used to the mantra repeated in a number of cases, that the intention behind the Housing Grants Construction and Regeneration Act 1996 as amended (“the Construction Act”) is to give effect to a “pay now, argue later” regime.
Notes from our Chairman Tim Willis, particularly on Brexit.