Chairman's Notes - Hamish Lal

Editors' Notes - Douglas James, Benedict Morillo, Crown Office Chambers

Landmark Sudlows ruling establishes principles for serial adjudications - Michael Hopkins, Partner, Pinsent Masons

Stayin’ Alive: the role of arbitration in enforcing adjudicators’ decisions - Michael Coumas, Keating Chambers

Preventing/Resolving Construction Disputes through Negotiation, Dispute Boards, or Mediation - Wayne Clark, Arbitrator, Mediator, Author

The Adjudication Society regional 'Meet the Adjudicator' panel event - Andrew Dixon, Walker Morris

Adjudicator Spotlight - Bernadette Barker, Bob Davis, Orla Fitz.Gerald and Peter O'Malley

Case Notes

Hamish Lal

Autumn 2023: Members will have received, earlier this week, Election Papers for those candidates running to join the Executive Committee as Ordinary Members. It is excellent for me to see a good number of ‘new’ people wanting to make meaningful contributions to the work of The Adjudication Society. To draw talent and energy from our diverse Membership is vital if The Adjudication Society is to be creative, progressive and avoid the intellectual trap of ‘group thinking’.  I happily urge all Members to use their vote and look forward to announcing the results at the Annual General Meeting.

The Executive Committee is in tangible flux. Six members of the Executive Committee will be standing down this Autumn. I thank very warmly, Richard Booth, Lawrence Davies, Claire King, Theresa Mohammed, Tim Willis and Edward Quigg: All of these people have given significant time, care and attention to the Society.  They all leave the Society in a much stronger position than when each joined the Committee and from my very personal perspective have all been excellent colleagues.

Our Membership is diverse and catches the full array of ‘stakeholders’ in statutory adjudication. We have a good number of Adjudicators, and I thought it sensible that we now start to focus the “spotlight” on our Adjudicators. This new initiative is well received and the initial feedback from Members evidences that Members are actually very open to seeing ‘new’ Adjudicators.  The general idea is that we will “spotlight” up to four Adjudicators every month. The questions posed to each are below (but I am happy for Members to suggest other questions):

1. What were you, professionally, before you started work as an Adjudicator?
2. How in your view has adjudication changed over your career?
3. What advice would you give to ‘new’ adjudicators?

We have a bunch to look forward to in Q4:

• On November 13th, Craig Morrison of Pinsent Masons will give our Adjudication Case Law Update No.9. Please keep in mind that this is on-line only. More information here.
  
  
• On November 14th our Practical Workshop No. 3 will take place.  Sean Gibbs, Dean Sayers and Susan Francombe will lead the Workshop looking at Evidence in Adjudication. More information here.
  
  
• On November 30th, the Society in collaboration with King’s College London will launch 2023 Construction Adjudication in the United Kingdom: Tracing trends and guiding reform.

I must end by thanking our joint editors of The Adjudication Society Newsletter, Benedict Morillo and Douglas James of Crown Office Chambers. In a professional world saturated with ‘posts’ on social media platforms, blogs and short comments (often on important case law) it is rewarding to find that Members still want and enjoy reading reasoned Articles and Case Notes. In that context, I am pleased that we cover the Court of Appeal’s decision in Sudlows Limited v Global Switch Estates 1 Limited [2023] EWCA Civ 813 which has codified principles that apply to serial adjudications:

• If the parties engage in serial adjudication, and there is debate about whether a particular dispute has already been decided, the need for speed and the importance of at least temporary finality mean that the adjudicator (and, if necessary, the court on enforcement) should be encouraged to give a robust and common sense answer to the issue. It should not be a complex question of interpretation of documents and citation of authority.
  
  
• There is a need to look at what the first adjudicator actually decided to see if the second adjudicator has impinged on the earlier decision but what matters for the purposes of s.108 is what it was, in reality, that the adjudicator decided. It is that which cannot be re-adjudicated. The form and content of the documentation with which he was provided is of lesser relevance and, as was pointed out in Harding v Paice and Hitachi, can be misleading.
  
  
• One way of at least testing whether the correct approach has been adopted is to consider whether, if the second adjudication is allowed to continue, it would or might lead to a result which is fundamentally incompatible with the result in the first adjudication. If in that second adjudication, one or other of the parties is asking the adjudicator to do something that is diametrically opposed to that which the first adjudicator decided, then that may be an indication that what they are seeking to do is impermissible.

Thank you and all best wishes for Q4 2023.

Hamish Lal

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Douglas James, Benedict Morillo, Crown Office Chambers

This quarter’s newsletter contains a substantial amount of diverse content which is reflective of the Adjudication Society’s wide-ranging membership and the work that it carries out. 

The important decision of Sudlows Limited v Global Switch Estates 1 Limited [2023] EWCA Civ 813, judgment in which was handed down in July of this year, receives a good amount of coverage this issue. Fenwick Elliott provides a note on the case, and Michael Hopkins of Pinsent Masons provides some guidance to how parties ought to approach serial adjudications in light of the decision. 

Thanks go to Nicholas Gould, Laura Bowler, Ruth Leake, Roma Patel, Jake Owen, Oliver Weisemann and Taj Atwal of Fenwick Elliott as ever for generously providing an update on reported adjudication judgments from the first half of this year.

We also have an article from Michael Coumas of Keating Chambers on the interaction between arbitration and adjudication and in particular on whether the validity of adjudications is an arbitrable issue in light of the recent case of Northumbrian Water Ltd v Doosan Enpure Ltd [2022] EWHC 2881 (TCC) and previous case law.

Wayne Clark provides us with an interesting article on other methods of dispute resolution including the use of dispute boards which are increasingly being used in large scale construction projects. He also considers how disputes might be prevented in the first place, which is something of a frightful prospect for those of us involved in adjudication!

In terms of the Society’s activities, we have a report from Andrew Dixon of Walker Morris about a recent ‘Meet the Adjudicator’ panel event in Leeds held to further the Society’s Women in Adjudication Initiative. Thanks to Chantelle Vermeulen, Bernadette Barker, Amy Bonzyck, Caroline McDermott, and Sue Kim for being on the panel and sharing their wisdom and to Morwenna Crichton for chairing the event. We also have the first of a series of ‘Adjudicator Spotlight’ interviews with Bob Davis, one of the founding members of the Society and its second Chair.

Please do get in touch if you would like to contribute an article to the newsletter (djames@crownofficechambers.com and bmorillo@crownofficechambers.com). All contributions are welcome and we are happy to discuss any ideas for articles you might have.

Douglas James
Benedict Morillo

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Michael Hopkins, Partner, Pinsent Masons

In this article, Michael Hopkins provides a summary of Sudlows Limited v Global Switch Estates 1 Limited [2023] EWCA Civ 813 which concerned whether and to what extent subsequent adjudicators and bound by the decisions of previous adjudicators, and how this relates to the jurisdiction of subsequent adjudicators. He provides guidance on how parties should approach serial adjudications in light of the decision. This article was first published on Pinsent Masons’ Out-Law blog.

Read the full article

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Michael Coumas of Keating Chambers looks at the interaction between arbitration and adjudication. He analyses previous case law including the recent decision of Northumbrian Water Ltd v Doosan Enpure Ltd [2022] EWHC 2881 (TCC) and he considers whether disputes about the validity of adjudications can be determined in arbitration.

Read the full article

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Wayne Clark, Arbitrator, Mediator, Author

Wayne Clark looks at how disputes might be prevented in the first place, and other methods of dispute resolution other than adjudication. He considers what makes an effective negotiation strategy, the increasingly popular dispute board style of dispute resolution, and how mediators can effectively resolve disputes.

Read the full article

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Andrew Dixon, Walker Morris

Andrew Dixon provides a report of the Society’s Leeds panel event which formed part of the Society’s ‘Women in Adjudication’ initiative. Morwenna Crichton chaired the panel which featured adjudicators Chantelle Vermeulen, Bernadette Barker, Amy Bonzyck, Caroline McDermott, and Sue Kim.

Read the full article

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The Society has launched a new series, 'Spotlighting Adjudicators', in which we interview adjudicators about what they were doing previously, what they think has changed in Adjudication, and what advice they have for 'new' adjudicators. The first four to be interviewed are Bernadette Barker, Bob Davis, Orla Fitz.Gerald and Peter O'Malley.

Read their responses here

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Case Note Contributors: Nicholas Gould, Laura Bowler, Ruth Leake, Roma Patel, Jake Owen, Oliver Weisemann and Taj Atwal, Fenwick Elliott

Nicholas James Care Homes Limited v Liberty Homes (Kent) Limited

Reference: [2023] EWHC 360 (TCC)
Date: 21 February 2023
Judge: Mr Andrew Singer KC
Keywords: Adjudicator’s Decision, freezing injunction, stay of execution

Read the full case note

Henry Construction Projects Limited v Alu-Fix (UK) Limited

Reference: [2023] EWHC 2010 (TCC)
Date: 23 May 2023
Judge: District Judge Baldwin
Keywords: Adjudication; Adjudicators' decisions; Construction contracts; Enforcement; Jurisdiction; Pay less notices; Summary judgments

Read the full case note

McGurran Civils ROI Ltd v K&J Townmore Construction Ltd (Approved)

Reference: [2023] IEHC 355
Date: 23 June 2023
Judge: Mr. Justice Garrett Simmons
Keywords: Construction Contracts Act 2013, Adjudicators Jurisdiction, Breach of Natural Justice, Adjudication Enforcement

Read the full case note

Sleaford Building Services Limited v Isoplus Piping Systems Limited

Reference: [2023] EWHC 1643 (TCC)
Date: 4 July 2023
Judge: Mr Alexander Nissen KC
Keywords: Adjudication, Indemnity basis, Part 36 offers, Rules of court

Read the full case note

Sudlows Limited v Global Switch Estates 1 Limited

Reference: [2023] EWCA Civ 813
Date: 12 July 2023
Judges: Coulson LJ, Lady Justice Andrews, Lady Justice Elisabeth Laing
Keywords: Adjudicators' decisions; Adjudicators' powers and duties; Delay; Extensions of time; JCT contracts

Read the full case note

Home Group Limited v MPS Housing Limited

Reference: [2023] EWHC 1946 (TCC)
Date: 25 July 2023
Judge: Mr Justice Constable
Keywords: Adjudicators' decisions; Breach of contract; Contract terms; Enforcement; JCT contracts; Samples; Summary judgments

Read the full case note

DNCF LTD v Genus Homes LTD (Approved)

Reference: [2023] IEHC 490
Date: 11 August 2023
Judge: Mr. Justice Garrett Simmons
Keywords: Construction Contracts Act 2013, Adjudicators Jurisdiction, Breach of Natural Justice, Adjudication Enforcement, Frolic of its own, Set-Off

Read the full case note

K&J Townmore Construction Limited and Damien Keogh AND Deslend (Mechanical) Limited TA Cobec Engineering Group

Reference: [2023] IEHC 509
Date: 17 August 2023
Judge: Mr. Justice Twomey
Keywords: Construction Contracts Act 2013, Adjudicators Jurisdiction, Breach of Natural Justice, Adjudication Enforcement, Frolic of its own, Set-Off

Read the full case note

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