Adjudication Articles - Building Dispute Advice Services Limited

(Harding v Paice and ISG v Seevic) – July 15

In late 2014 two TCC decisions (Harding v Paice and ISG v Seevic) considered the effect of failures to serve payment ...

3 Sites but only one contract.

RCS Contractors Limited v Anthony Conway [2017] EWHC 715 (TCC) In this case, the Technology & Construction Court (TCC) was tasked ...

Ad hoc agreement inadvertently makes adjudicator’s decision finally binding

Khurana and another v Webster Construction Ltd [2015] EWHC 758 (TCC) It is a fundamental provision of the Construction Act 1996 ...

Adjudicating against an Insolvent Contractor

COLD COMFORT It’s a chilling situation indeed to find yourself forced to pay hefty damages to a firm so far in ...

Adjudicating and Litigation

ADJUDICATION & LITIGATION CHECK MATE? If you’re peeved with an adjudicator’s decision and start playing silly games rather than comply with ...

Adjudicating on discrete issues

We often see TCC judgments where the court has granted a party declaratory relief on an issue. When adjudication proceedings are ...

Adjudicating on Final Account – Nov 16

This article was written and published on the internet by Jonathan Cope of MCMS Ltd on 01/11/16. Let me begin with ...

Adjudicating on retention

PC Harrington Contractors Limited v Tyroddy Construction Limited Case reference: [2011] EWHC 813 Friday, March 25, 2011 Key terms: Natural justice ...

Adjudicating on same issue

SUMMARY: YOU CAN ADJUDICATE ON THE SAME DISPUTE TWICE! Adjudication is about deciding the ‘now dispute’ and moving on. But it’s ...

Adjudicating Reservations

GENERAL RESERVATIONS A party that thinks an adjudicator has no jurisdiction can save money and bother by simply waiting until the ...

Adjudicating Tactics

IT’S ALL IN THE GAME Parties in a dispute set all sorts of rules and try all manner of tactics on ...

Adjudication & Insolvent Companies

A Court of Appeal decision last week has broadly upheld previous TCC guidance as to the ability of companies in liquidation ...

Adjudication and CVA’s

11. Stay—Company Voluntary Arrangement—moratorium See Rossair Ltd v Primus Build Ltd27 Primus was engaged as main contractor on the construction of ...

Adjudication and notice to appoint administrator

Enforcement—threat of insolvency See Bernards Sports Surfaces Ltd v Astrosoccer4u Ltd20 The claimant contractor Bernards, sought enforcement of an adjudicator’s award ...

Adjudication and Part 8 proceedings

Procedure—use of CPR Part 8 in adjudication cases See Merit Holdings Ltd v Michael J Lonsdale Ltd25 The Defendant (“MJL”) was ...

Adjudication Case Law Update – Feb 17

Last year’s significant decisions on adjudication centred on three themes: parties embarked on and the courts had to contend with serial ...

Adjudication Notice cannot restrict right of defence.

The judgment in Penten Group Ltd v Spartafield Ltd, is therefore one you might have missed (but wouldn’t want to). What was ...

Adjudication now includes disputes arising ‘out of’ the contract?

A recent TCC decision has ruled that the right of adjudication mandated by the Construction Act for disputes arising “under” a ...

Adjudication Rejoinders

GOSH, IS THAT REALLY THE TIME? Adjudication is not litigation (lawyers please note) and an adjudicator is not obliged to consider ...

Adjudication Stops Court Action

THANK YOU, M’LUD Judge Coulson ruled recently that a court can pause a case and direct the parties to adjudicate their ...

Adjudicator does not have power to award debt recovery costs

5. Costs—jurisdiction—severance See Enviroflow Management Ltd v Redhill Works (Nottingham) Ltd19 O’Farrell J held that an adjudicator did not have jurisdiction ...

Adjudicator inviting parties comments & allegations of breach of natural justice.

Introduction This claim arises out of the development and conversion of an existing office building into an 87 bedroom hotel ...

Adjudicator missed document but decision still upheld as it is an interim remedy

Broughton Brickwork v F Parkinson Ltd [2014] EWHC 4525 (TCC) The TCC enforced an adjudicator’s decision that a Pay Less Notice ...

Adjudicator’s fees if decision unenforceable.

When Lord Dyson’s judgment in PC Harrington Contractors Ltd v Systech International was published in 2012, I suspect there was a ...

Adjudicator’s reasonable fees

Adjudicator’s fees — whether fees must be reasonable and how is reasonableness resolved See The Vinden Partnership Ltd v Orca LGS ...

Adjudicators must give parties opportunity to comment

CG Group Limited v Breyer Group PLC [2013] EWHC 2722 (TCC), Mr Justice Akenhead, 5 September 2013 Natural Justice -‐ Jurisdiction ...

Adjudicators new argument not breach of natural justice

An adjudication decision was made in favour of Synergy Gas Services against Northern Gas Heating on 8 August 2018. The present ...

All defence arguments must be used in adjudication

One of the fears relating to adjudication is that a referring party will attempt to achieve success by grinding the responding ...

Allegations of fraud in adjudication

Introduction This blog considers the extent to which an adjudicator can decide an issue of fraud which amounts to the subject ...

Amend Articles & Conditions in order to delete a contractual right to adjudicate

In the case of Harding (t.a MJ Harding Building Contractors) v Paice [2014] EWHC 4819 the Technology and Construction Court (TCC) ...

Amounts due and successive adjudications.

A recent decision from the TCC has provided welcome confirmation as to the effect of a failure to serve a pay ...

Arguments Not Raised

CAN AN ADJUDICATOR MAKE HIS DECISION BASED ON ARGUMENTS NOT RAISED? Is it the dispute decider’s job to pick one of ...

Arising Under Or In Connection With?

GETTING ARISE OUT OF A CHALLENGE An arbitration case might offer a way forward for the courts when asked to decide ...

CA must issue interim certificates in respect of each due date.

Henia Investments Inc v Beck Interiors Ltd. Contract administrators should always be diligent with interim payments even if other parties aren’t ...

Can Parties Agree To Change The Adjudication Rules?

NOBODY’S FORCING YOU TO DO IT The Construction Act deals a knock-out blow to adjudicators who try to hold on to ...

Can You Adjudicate On Negligence?

ADJUDICATION APPLIES TO DISPUTES IN CONNECTION WITH A CONTRACT – NOT JUST ARISING UNDER IT. The House of Lords has just ...

Can-You-Set-Off-From-An-Adjudicators-Decision?

THAMESIDE CONSTRUCTION COMPANY LTD V STEVENS & ANOR Mr and Mrs Stevens engaged Thameside Construction Company Limited (‘Thameside’) under a contract ...

Case Law update Oct – Dec 16.

We have seen a number of interesting decisions affecting construction and engineering practitioners during the fourth quarter of 2016. Adjudication cases from ...

Claims of more than one dispute rejected and reservation of rights.

Morgan Sindall Construction and Infrastructure Ltd v Westcrowns Contracting Services Ltd10 This was a case which contained a number of broad ...

Clarification on valid Payment Applications – April 16

Slowly but surely the TCC is working its way through the Construction Act 1996’s payment provisions and providing clarity where there ...

Company Voluntary Arrangement

KISSING GOODBYE TO YOUR MONEY? Your contractor wins an adjudication award but is subject to a Company Voluntary Arrangement. You intend ...

Consent required for concurrent adjudications

Can an adjudicator deal with more than one dispute at the same time? Deluxe Art & Theme Limited v Beck Interiors ...

Construction Act Changes

ORAL CONTRACTS INCLUDED, PAY WHEN CERTIFIED AND TOELENT CLAUSES BANNED I am delighted our prime minister is giving us our 10p’s ...

Construction Act Payment Rules March 15

SUMMARY Michelle Rousell, the construction editor at Practical Law has published the following useful article on the Construction Act Payment rules… ...

Consumers May Not Need A Withholding Notice…

LET THE SUPPLIER BEWARE You may have taken every precaution to make sure a contract is watertight but a consumer can ...

Contractor’s Application submitted late held to be invalid even though no pay less notice issued.

Henia Investments Inc vs Beck Interiors Limited Are late interim applications, the status of payless notices and conditions precedent for levying ...

Courts imply Business Efficacy to incorporate Pay Less Notice date.

What happens if the contractual payment terms agreed between the parties do not comply with the Construction Act and the problem ...

Courts imply terms when Scheme unworkable

Manor Asset Ltd v Demolition Services Ltd [2016] EWHC 222 (TCC) Here the court found an implied term in a ...

CVA = No Pay?

KISSING GOODBYE TO YOUR MONEY? Your contractor wins an adjudication award but is subject to a Company Voluntary Arrangement. You intend ...

Differences between interim and final accounts – Dec 15

Matthew Harding (t/a MJ Harding Contractors) v Paice and another [2015] – New Court of Appeal guidance on failure to serve ...

Disputes – When Does It Arise?

DON’T ASSUME THERE IS A DISPUTE JUST BECAUSE THE TIME FOR PAYMENT HAS PASSED. USE A LITTLE COMMON SENSE AS WELL. ...

Disputes – When Is A Dispute Not A Dispute?

DISPUTES AND DIFFERENCES | RIGHT TO ADJUDICATION – SECTION 108 Section 108(1) creates the “right to refer a dispute arising under ...

Do you need to have good faith negotiations prior to adjudication? – Aug 15

Do you need to have good faith negotiations prior to adjudication? In City Basements Ltd v Nordic Construction UK Ltd [2014] ...

Does An Adjudicators Decision Re-Start The Limitation Periods?

You are dissatisfied with an adjudicator’s decision, but pay the successful party. However, you can litigate or arbitrate the dispute (as ...

Doors Open To All Defences

ALL THINGS CONSIDERED Adjudicators have it drummed into them that they should decide the dispute in the notice of adjudication. Here’s ...

Effect Of Final Certificates

BINDING ADJUDICATION AWARDS FOLLOWING ISSUE OF FINAL CERTIFICATE Judges often have to ‘unwind’ adjudicators’ decisions to rule on them. When they ...

Employer did not have to pay full adjudication pay-less award as it would stifle further pursuit of its rights – Nov 15

In a recent case, an Employer did not have to pay the full adjudicators decision on a pay-less dispute, as it ...

End of simultaneous Scheme adjudications?

It is a well-known principle that a party to a “construction contract” (as defined by the Housing Grants Construction and Regeneration ...

Enforcement

ENFORCEMENT IN 6 WEEKS If someone owes you money, you can go to adjudication to get them to pay. And if ...

Enforcement Of Multiple Adjudications

COMPLEXITY THEORY How do you deal with a whole load of connected disputes that all seem to have a knock-on effect ...

Ensure your Application is made at the right time, if you intend to adjudicate upon it. Aug 15

Walker Morris has published the following useful article on the requirements to ensure an application is made at the right time, ...

EOT Before Payment

THE QUESTION IS WHAT IS THE EFFECT ON THE MONEY DUE WHEN AN EXTENSION OF TIME IS GRANTED JUST BEFORE THE ...

Excluded operations & reservation of position

6. Jurisdiction-excluded operation- reservation of rights Equitix ESI CHP (Wrexham) v Bester Generacion UK Ltd11 There were two adjudications between the ...

Few financial grounds for resisting adjudication enforcement

In the recent case of LXB RP (Crown Road) Ltd v Squibb Group Ltd, the Court enforced an adjudicator’s decision, finding ...

Hands-Off Adjudicating

THE MAN IN BLACK People sometimes get the idea that adjudicators are a bit like referees on the rugby pitch. Actually, ...

High bar for pay less notices – Nov 17

A recent decision of the Scottish Court of Session has struck down a pay less notice for failing to provide sufficient ...

In enforcement proceedings ensure you provide proof of financial longevity

Equitix ESI CHP (Wrexham) Ltd v Bester Generacion UK Ltd Equitix was created specifically for the project to build a biomass-fired ...

Indemnity & Interest penalties in enforcement case – April 16

AMD Environmental Ltd v Cumberland Construction Company Ltd [2016] The background to this Technology and Construction Court (TCC) decision is that ...

Interest

NO AUTOMATIC RIGHT TO INTEREST IN ADJUDICATION Usury may be a sin, but that doesn’t mean it’s against the law. But ...

Interest rates in adjudication

As an adjudicator you don’t often get involved with what happens between the parties after you have issued your decision (unless ...

Interim applications do not constitute agreement of value of the work

Award —character of award— recovery of sums overpaid See Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd10 This was the ...

Interim Payment Principles

Systems Pipework Ltd v Rotary Building Services Ltd18 The Defendant Rotary Building Services (“Rotary”) as M&E contractor, engaged the Claimant Systems ...

Judge’s pointers on witness evidence

Reading the judgment in Dacy Building Services Ltd v IDM Properties LLP, it reminded me of just how tough it can ...

Jurisdiction Disputes

THE DANCE OF DEBT Some folk will perform the litigation tango over trifling disputes, and lose vast sums in the process. ...

Lack of Consideration leads to Restitutionary Relief

ISG Retail Ltd v Castletech Construction Ltd (TCC – 22.5.2015) The adjudicator had jurisdiction to grant the restitutionary relief of ordering ...

Liens And Late Decisions

LIEN OVER Adjudicators can try to keep the award until their own bill has been settled. They can even write it ...

Liquidated companies cannot adjudicate

A recent TCC decision has ruled that adjudication proceedings cannot be brought by companies in liquidation in relation to financial claims ...

LPA Debt recovery costs not recoverable in adjudication

Adjudicator’s agreement — binding by conduct See (1) Christopher Linnett Ltd and (2) Christopher Linnett v Matthew J Harding t/a M ...

Massive Adjudications

PLAYING GOLF WITH SUPERMAN If you decide a dispute involving 51,000 job orders in 28 days, would you need to wear ...

Milestone payments held non-compliant.

Construction contracts as defined by the Housing Grants, Construction and Regeneration Act 1996 as amended (the Construction Act) must contain an ...

Multiple Adjudications

BITE SIZED ADJUDICATIONS Adjudication works best when each chunk is bite-sized, but that doesn’t mean you can keep bringing the same ...

Natural Justice

The decision in the recent case of ABB Ltd v Bam Nuttall Ltd has bucked the trend of firms struggling against ...

New ground for staying adjudication decisions.

Court of Appeal endorses new ground for staying adjudication decisions United Kingdom 13.12.2018 A Court of Appeal decision earlier this month ...

New Response Arguments

SUDS LAW You can throw anything you want at an argument in an adjudication – even the kitchen sink – but ...

No adjudication if party insolvent

The Technology and Construction Court (TCC) has delivered a significant judgment in Michael J Lonsdale (Electrical) Ltd v Bresco Electrical Services ...

November 16 Decisions on Enforcement

Key point: Can an adjudicator decide an issue that neither party has raised? Stellite Construction Ltd v Vascroft Contractors Ltd [2016] ...

Oral contracts and adjudicator’s own value

See PFG Design Ltd v Masma Ltd9 A number of issues arose for decision and were pursued as jurisdictional matters whereas ...

Part 8 proceedings

2. Award-enforceability-use of Part 8 proceedings-error of law Seadown Developments Ltd v SMCC Construction Ltd6 The Claimant engaged the Defendant under ...

Pay less Notice for final account instead of interim account.

This is another “pipe-up or pay-up” case. Main contractor Logan Construction (South East) Ltd had its beady eye on £1m extra ...

Pay less notices & subsequent true-value disputes

Grove Developments Ltd v S&T (UK) Ltd19 The Claimant (“Grove”) employed the Defendant contractor (“S&T”) to design and build a Premier ...

Pay less notices and set-off – July 2018

A recent Scottish decision has considered whether an employer is entitled to raise set-offs not previously raised in a pay less ...

Paying Losers Costs

GOODBYE TOLENT Tolent clauses, which make the party that refers an adjudication pay all the legal costs, are to be outlawed ...

Payment & Pay Less Notices are not Decisions or Certificates

A TCC decision last week has further clarified the implications for Employers who fail to serve payment or pay less notices ...

Payment Application too Early was held to be invalid – August 2015

Walker Morris has published the following article in its Adjudication Matters August 2015: Part 1 Following the 2011 amendments to the ...

Payment into escrow accounts contrary to Act.

Graham engaged Pioneer under a subcontract (“Subcontract”) to carry out cladding and curtain walling at a site in South Shields. Two ...

Payment Notices & Pay less notices – Update Jan 17

Looking back on the disputes that have crossed our desks during 2016, a significant majority have revolved around ‘notified sum’ claims. ...

Payment notices and true value adjudications – Nov 18

S&T(UK) LIMITED v GROVE DEVELOPMENTS LIMITED On 7 November 2018 the Court of Appeal handed down its judgment in this landmark ...

Payment notices: An overview – Dec 15

Payment notices: an overview of a years changing decisions… Introduction This year has seen the rise of the headline-grabbing “smash and ...

Payment Schedules and the Scheme

In a recent decision of the Technology and Construction Court, Grove Developments Limited v Balfour Beatty Regional Construction Limited [2016] EWHC ...

Perceived Bias

Bias on the part of the adjudicator will render their decision unenforceable. The law recognises two categories of bias: actual bias ...