Back in the day, when adjudication enforcement cases were first coming before the courts, and practitioners and Judges were regularly grappling with issues which were new, in the legal sense of being without precedent or guidance, one of the major areas of contention, was what actually constituted the dispute in question.
Jeremy Glover
The year 2017 saw the release of new editions of the FIDIC and NEC forms of contract. When the NEC announced at the beginning of March 2017 that they were releasing the new NEC4, they outlined the three core drafting principles. The underlying philosophy behind the FIDIC update was similar.
A talk by Jeremy Glover, Partner, Fenwick Elliott LLP, to the Adjudication Society (London branch), 17 October 2012
It is well known that, following the case of Hershel Engineering Limited v Breen Property Limited [2000] EWHC TCC 178, section 108 of the Housing Grants Construction & Regeneration Act 1996 means exactly what it says. An adjudication can be commenced at any time, even if there are court proceedings already in progress. However, until the case of DGT Steel and Cladding Ltd v Cubitt Building and Interiors Ltd [2007] EWHC 1584 (TCC), which came before His Honour Judge Coulson QC, the reverse question had not come before the courts.
There are a number of changes in the air which will impact on business at the Technology & Construction Court (“TCC”) all of which will inevitably affect members of the Adjudication Society. It is too early to say quite what these changes will mean, but everyone should be aware of them.
The orthodoxy that adjudicators’ decisions are not severable on enforcement was challenged by Mr Justice Akenhead last year in Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC). Akenhead J has taken these principles even further in his decision last month in Bovis Lend Lease Ltd v The Trustees of the London Clinic Ltd [2009] EWHC 69 (TCC). Although the TCC has yet to sever an adjudicator’s decision, this issue is likely to be fertile ground for future challenges.
Mr Justice Coulson no doubt quite deliberately noted in 2007 that: "With challenges based on jurisdiction and natural justice difficult (although not of course impossible) to establish in practice, the resourceful losing party in adjudication has had to look elsewhere for a reason to argue that the adjudicator's decision should not be enforced."