The Adjudication Society, in conjunction with the CIArb, published revised Guidelines on the “Jurisdiction of the UK Construction Adjudicator” at the start of 2016.
Now in their third edition, the Guidelines were first published in 2011 with the aim of providing a sensible and practical approach to some of the everyday issues encountered in adjudication in relation to jurisdiction.
The 2012 edition had incorporated the amendments made to the Housing Grants, Construction and Regeneration Act 1996 by the Local Democracy, Economic Development and Construction Act 2009. However, the time was felt right for a review given the Act (as amended) has now been in force for a number of years.
A consultation was undertaken in the autumn of 2015 with feedback and comments reviewed and debated by a drafting committee as well as CIArb and the Adjudication Society.
The minor revisions in the 2016 edition are as follows:
- Clarification that the Guideline does not extend to international standard forms providing for adjudication such as the FIDIC forms of contract;
- Amendments to Paragraph 2.1 dealing with threshold jurisdiction. These now provide that an “initial and proportionate review to flag any issues” on jurisdiction should be undertaken by the adjudicator upon accepting the appointment. The committee considered that this is right as a matter of law but the revised wording makes it clear that the adjudicator's review of his or her jurisdiction needs to be proportional and based on the information available as at the time of the Adjudication Notice. A distinction has been made between the initial conflict check that an adjudicator should carry out and the checklist of jurisdictional hurdles that an adjudicator should keep under review during the adjudication;
- In Paragraph 2.1.2.10, an endnote now flags that some rules provide for more than one dispute to be referred to adjudication and refers to the Willmott Dixon Housing Ltd v Newlon Housing Trust case.
- Sections 2.5 and 2.6 have been amended to clarify the position regarding costs.
The drafting committee comprised:
- Nicholas Gould, Partner, Fenwick Elliott LLP (Chairman of the Working Group)
- Claire King, Senior Associate, Fenwick Elliott LLP
- Jeremy Glover, Partner, Fenwick Elliott LLP
- Matt Molloy, MCMS
- Philip Fidler, Dispute Decisions Ltd
- Rob Horne, Trowers & Hamlin
- Susan Francombe, No Red Tape
- William Webb, Keating Chambers