Chairman's Notes - Hamish Lal, Akin Gump Strauss Hauer & Feld

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

Launch of the Equal Representation in Adjudication Pledge and Women in Adjudication - Morwenna Crichton, Yelland Savage

Adjudicator’s Liens and Security for Fees - Lawrence Davies, partner of Pinsent Masons LLP and Adjudicator

Jurisdictional challenge to “true value” disputes - is this the last word? - Tim Willis, MA FCIArb AMICE Solicitor Advocate

Enforcement of Adjudication Awards Against Insolvent Defendants - Benedict Morillo, Crown Office Chambers

Scottish construction industry still blighted by serious payment and cashflow issues, CICV survey reveals - Construction Industry Collective Voice

Case Notes

Hamish Lal, Akin Gump Strauss Hauer & Feld

I am delighted to welcome the new and joint-editors of The Adjudication Society Newsletter, Benedict Morillo and Douglas James of Crown Office Chambers. I want to thank straightaway Tim Willis who leads the Team working on the Newsletter and all the contributors.  In a professional world saturated with ‘posts’ on social media platforms, blogs and short comment (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 AM Construction Limited v The Darul Amaan Trust [2022] EWHC 1478 (TCC) which looked at 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. The validity of the default payment notice was disputed and there had been no prior adjudication determining that issue. The Court (consistent with earlier related case law) held that the employer had to pay the amount set in the default payment notice before it could launch a “true value” adjudication. 

April 17th is a key date.  The lecture in memory of Christopher Miers and John Redmond will be delivered by Justin Mort KC at the offices of Pinsent Masons. The Lecture looks at whether a construction contract that incorporates an arbitration agreement requires an adjudicator’s decision to be enforced in arbitration (and therefore whether a party resisting enforcement was entitled to a stay under Section 9 of the Arbitration Act). In essence the Lecture will explore some of the points raised in Northumbrian Water Ltd v Doosan Enpure & Anor [2022] EWHC 2881. The Lecture will be followed by a Drinks Reception hosted by the Adjudication Society. I look forward to meeting a good number of our Members. April 27th is another key date. This is the first Women in Adjudication event and we will host a Panel of Adjudicator Nominating Bodies including, TECSA, TECBAR, CIArb, RIBA, RICS and the ICE. The event is a super opportunity for all younger and female practitioners keen to explore the route to becoming an adjudicator. There will be other Women in Adjudication events taking place in Bristol, Dublin, East Anglia, Edinburgh, and Leeds.  I am grateful to the Steering Group of Women in Adjudication – this is such an important initiative.  I should add that if you have not yet signed the Equal Representation in Adjudication Pledge, please support this initiative by joining the hundreds of Members that have already signed the Pledge.

November 30th is the date for our 2023 Annual Conference.  I hope very much to see a good number of Members in London.  In that context, I want to repeat that the Committee exists solely to aid Members and to further the learning of Adjudication and so please let us know if there is anything that you would like us to do, improve or accelerate. In that context, the Centre of Construction Law & Dispute Resolution at King’s College London (working in close collaboration with The Adjudication Society) will shortly launch the 2023 Survey. Can I please ask that all Members please complete the Survey not least because we are keen to get a large data set and a data set that reflects the views and thoughts of all our Members. 

I end with sad news by reporting that Ben Beaumont passed away recently. Ben was Chairman of the Adjudication Society of Construction Law in 2013 – 2015 and we are of course grateful for all of Ben’s hard work and devotion to the Society. Ben had been a member of Garden Court Chambers since 2018 but also continued with charitable projects, volunteering at the East Oxford Community Centre and was a trustee of the Sunrise Multicultural Project.

Hamish Lal

Douglas James, Benedict Morillo, Crown Office Chambers

We are very pleased to be taking over the editorship of the Adjudication Society’s newsletter. Thanks to the outgoing editor, Daniel Churcher, for all of his hard work.

Our articles this quarter cover a wide range of content. Morwenna Chrichton reports on the Adjudication Society’s Equal Representation in Adjudication Pledge and the Women in Adjudication initiative, which were launched in February. Further information on both of those initiatives can be found on the Society’s website. We would encourage you all to sign the pledge. Lawrence Davies of Pinsent Masons looks at the rules on adjudicator’s liens and their complex relationship with demands for advance payment and jurisdiction in light of Nicholas James Care Homes v Liberty Homes (Kent). Tim Willis analyses the decision in AM Construction v The Darul Amaan Trust and considers how best to deal with jurisdictional issues arising out of non-payment of notified sums. Benedict Morillo looks at the law and practice of enforcing adjudication awards against insolvent defendants and asks whether the approach in South Coast Construction v Iverson Road was the correct one. We also have a news item from the Construction Industry Collective Voice covering their recent survey of cashflow and payment reductions in the Scottish construction industry which goes to emphasising the important role which adjudication plays for the construction industry.

Fenwick Elliott have once again provided an excellent and comprehensive series of case notes covering key decisions from the second half of 2022 and early 2023. Thanks go to Nicholas Gould, Laura Bowler, Ruth Leake, Aurelia Russo, Taj Atwal, Jake Owen, Roma Patel and Oliver Weisemann for these.

There is much to look forward to over the coming months: our Summer newsletter will have pieces on the important cases of Sudlows v Global Switch Estates 1 and Northumbrian Water v Doosan Enpure, which Fenwick Elliott cover in their case notes. Additionally, Abbey Healthcare v Simply Construct which concerns whether collateral warranties are construction contracts such that they can be referred to adjudication, received permission to appeal to the Supreme Court in December 2022.

Please do get in touch with us if you would like to contribute an article to the newsletter: djames@crownofficechambers.com and bmorillo@crownofficechambers.com. All contributions are welcome! We are happy to discuss any ideas for articles you might have. Finally, we hope you had a happy Easter.

Douglas James
Benedict Morillo

Morwenna Crichton, Yelland Savage

In this article, Morwenna Chrichton provides a report on the launch event of the Society’s Equal Representation in Adjudication Pledge and Women in Adjudication initiatives at King’s College London on 28 February 2023. Please find further details of these initiatives on the Society’s website and please do sign the Pledge.

Read the full article

Lawrence Davies, partner of Pinsent Masons LLP and Adjudicator

Lawrence Davies of Pinsent Masons considers the law on adjudicator’s liens and demands for advance payment of fees following Nicholas James Care Homes Limited v Liberty Homes (Kent) Limited. The decision seems surprising at first blush and Lawrence discusses when an adjudicator’s demand for advance payment is unlawful, and contemplates possible reform.

Read the full article

Tim Willis MA FCIArb AMICE Solicitor Advocate

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.

Read the full article

Benedict Morillo, Crown Office Chambers

Benedict Morillo of Crown Office Chambers sets out the law and practice surrounding the enforcement of adjudication awards against insolvent defendants. He considers whether the approach taken in South Coast Construction Ltd v Iverson Road Ltd was correct and looks at the risk of unenforceable awards being enforced against insolvent defendants and how to mitigate against this.

Read the full article

Construction Industry Collective Voice

The Construction Industry Collective Voice provides a news item on their recent survey regarding cashflow and payment reductions in the Scottish construction industry. The figures emphasise the important role that adjudication continues to play in the construction industry.

Read the full article

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

FTH Ltd v Varis Developments Ltd

Reference: [2022] EWHC 1385 (TCC)
Date: 08 June 2022
Judge: Mr Adrian Williamson KC
Keywords: Adjudicators' decisions; Company voluntary arrangements; Cross-claims; Design and build contracts; Enforcement; Security; Stay of execution; Summary judgments

Read the full case note

Associated Newspapers Ltd v Buckingham Group Contracting Limited & Ors

Reference: [2022] EWHC 2767 (TCC)
Date: 02 November 2022
Judge: Mr Roger Ter Haar KC
Keywords: Breach of Contract; Construction Claims; Cost Budgets; Cost Management; Fees

Read the full case note

Northumbrian Water Limited v (1) Doosan Enpure Limited; (2) Tilbury Douglas Construction Limited

Reference: [2022] EWHC 2881 (TCC)
Date: 14 November 2022
Judge: Mrs Justice O’Farrell DBE
Keywords: Adjudicators' decisions; Arbitration agreements; Construction contracts; Dispute resolution; Enforcement; Stay of proceedings; Summary judgments; Water industry

Read the full case note

Sudlows Limited v Global Switch Estates 1 Limited

Reference: [2022] EWHC 3319 (TCC)
Date: 21 December 2022
Judge: Mr Justice Waksman
Keywords: Adjudication, Enforcement, Extension of Time, jurisdiction, breach of natural justice, adjudicators’ decisions

Read the full case note

Ravestein BV v Trant Engineering Ltd

Reference: [2023] EWHC 11 (TCC)
Date: 9 January 2023
Judge: Her Honour Judge Kelly
Keywords: Adjudication; Adjudicators' decisions; Arbitration awards; Notices; Notice of Dissatisfaction

Read the full case note

LRJ Interiors Limited v Cooper Construction Limited

Reference: [2023] EWHC 3339 (TCC)
Date: 11 January 2023
Judge: HHJ Russen KC
Keywords: Limitation Act 1980; Payment Applications; Time Bar; Enforcement; Accrual.

Read the full case note

WRB (NI) Limited v Henry Construction Projects Limited

Reference: [2023] EWHC 278 (TCC)
Date: 10 February 2023
Judge: Mr Justice Pepperall
Keywords: Adjudication; Adjudicators’ decisions; Stay of execution

Read the full case note