Tim Willis

This is the third article in the series concerning the implications for adjudication of the introduction if BIM into projects.

In considering the relationship between BIM and the standard contract documents we come up against a number of issues. First, what status should we attribute to our BIM protocols and procedures? Secondly, what status should be attributed to the information produced by those procedures? and Thirdly, what should we say about the resolution of inconsistencies and ambiguities within the information produced for BIM or between that information and other information or procedures?

This is the first of a series of articles in which I will explore the challenges that will arise from the implementation of Building Information Modelling (“BIM”) for those involved in dispute resolution.

In Melville Dundas Ltd (in Receivership) and Others v George Wimpey UK Ltd (Scotland) [2007] UKHL 18, the House of Lords dealt with the question of whether JCT provisions for payment following a determination on grounds of insolvency were contrary to Section 110 and 111 of the HGCRA 1996. The House of Lords concluded (3-2) that they were not. The differences in the speeches refl ect the differences of view, and the on-going debate, within the construction industry.

The Construction Industry Consultation “improving payment practice in the Construction Industry” was published on 20th June 2007. The deadline for responses is 17th September 2007.

The consultation is the second consultation on improving payment practice in the industry and considers amendments to the Housing Grants Construction Regeneration Act 1996 (“the Construction Act”). The proposals are straightforward and aim to:-

• improve transparency and clarity in the exchange of information relating to payments to enable the better management of cash flow;

Our two most recent events took place in October and were well attended.

17 October – Paper by Delia Dumaresq

Are recent Court of Appeal Decisions indicative of a sea change on enforcement or re-statements of established principles?

The Midlands Region’s most recent event was a talk by Abdul-Lateef Jinadu of Keating Chambers on the pitfalls the adjudicator should avoid. The joint event with the CIArb was well attended despite the hot weather. The theme of the talk was the supervision of adjudicators by the courts through various devices. Mr Jinadu discussed the changing attitude of the courts as demonstrated Report of Midlands Event Tim Willis by numerous cases and the recent “hands off adjudication” approach adopted by the Court of Appeal.

The Midlands region held a successful re-launch meeting on 25 June at the Birmingham Chamber of Commerce and Industry. The meeting was attended by about 50 people.

Professor Rudi Klein gave a thought provoking presentation “ Adjudication where are we now?”, raising a number of issues which he considered worthy of debate and possible amendment to the legislation.

Professor Klein referred to the radical nature of the Housing, Grants, Construction and Regeneration Act which is a radical statutory intervention into the commercial arrangements between parties.

Almost all of the cases concerning adjudication that you read about in these pages concern challenges to the adjudicator’s jurisdiction, which are raised as a defence to an application to the Court to enforce the adjudicator’s decision.

The parties will by that stage have gone through an adjudication process – albeit one will be objecting to the adjudicator’s jurisdiction.