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Over recent years, much has been written, and even more said, about the quality of performance and abilities of adjudicators.
The extent to which adjudicators can set out their thinking in advance of issuing a decision has recently been considered by the Court of Appeal in Lanes Group Plc v Galliford Try Infrastructure Limited [2011] EWHC 1 [2011] EWCA Civ 1617.
Whether a complaint surrounding an adjudicator’s resignation will be upheld will very much depend on the facts.
It is widely accepted that the initial intention of the Housing Grants, Construction and Regeneration Act 1996, (HGCRA 1996) was that adjudication would be a low cost quick fix method of resolving construction disputes.
A straw poll amongst adjudicators and practitioners in the adjudication field on the relationship between adjudication enforcement and arbitration clauses would likely result in an overwhelming majority answering that the two have nothing to do with each other; that the jurisdiction over adjudication enforcement is solely the province of the courts and arbitrators have no look-in.
It is fitting that the introduction of the amendments to statutory adjudication in England, Wales and Scotland should coincide with a changing of the guard amongst this newsletter’s editorial team.
One of the key changes to Part II of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”) is that construction contracts no longer have to be “in writing” to fall within its remit.
The most provocative amendment made by the “new” Construction Act is, of course, the repeal of the Section 107 restriction that previously meant that only contracts “in writing or evidenced in writing” counted as construction contracts.
Whilst the amendments to the adjudication provisions of the Housing Grants, Construction and Regeneration Act 1996 are interesting, the changes to the payment provisions will have a more significant impact on the industry – both on contractors as they try to grapple with the various different notices and on lawyers, adjudicators and judges dealing with the inevitable payment disputes that will arise.
One complaint that arises from time to time is an allegation that an adjudicator has a close relationship with one of the party representatives.
Isn’t it annoying when you see a shop put up its Christmas display in June. At first, there a brief feeling of excitement whilst everyone remembers how much fun Christmas is (or should that be was when you were a kid).
The Construction Act came into force on 1 May 1998. Over the last, at least seven years, there has been significant debate over amending it.
“Laws are like sausages. You should never watch them being made” - Otto von Bismark.
Some of us have been working with BIS (or whatever they are called this week) both on the original Construction Act and the recent amendments to it in the Local Democracy, Economic Development and Construction Act 2009.
The extent to which Adjudicators may take the initiative in ascertaining the facts and the law, and the ground rules for doing so, has been the subject of two recent Scottish Court of Session decisions.
The November 2010 edition of the newsletter contained a thought provoking article reviewing the decisions in Cantillon, Quartzelec and Pilon and questioned whether it is desirable for a Responding Party to be able to raise any defence in response to an adjudication referral.
Most of you will be aware of the phrase concerning a tribunal “going off on a frolic of its own”, which, in the context of adjudication, is a reference to an adjudicator using his or her own evidence to determine a dispute.
The recent TCC judgment in De Beers v Atos, by Mr Justice Edwards-Stuart, referred to a ‘pet subject’ of mine; ‘Concurrent Delays’.