Issues arising in adjudications have found their way into our courts on a fairly consistent basis since the Construction Act came into force.
Shona Frame
The Court’s decision in Deluxe Art & Theme Limited v Beck Interiors Limited [2016] EWHC 238 (TCC) is likely to have significant ramifications for adjudications commenced under the Scheme for Construction Contracts 1998 (“the Scheme”) and parties, adjudicators and nominating bodies alike will have to take note and review their respective practices where appropriate.
"Can a party be prevented from referring a dispute to Adjudication?" This was Lord Woolman's summary of the question posed in T Clarke (Scotland) Limited v Mmaxx Underfloor Heating Limited – which was also described by him as a "novel point".
This issue arose from Clarke's application for an interim interdict (the Scottish equivalent of an injunction) to prevent Mmaxx from initiating any further adjudications against Clarke.
The question of whether a party can be prevented from referring a dispute to adjudication is one that the courts have had to deal with only infrequently.
Scottish Law on Arbitration was codified in the Arbitration (Scotland) Act 2010. The new Act broadly applies to any arbitration commencing after 7 June 2010. It represented a sea change in Scottish Arbitration Law.
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 issue of what material can be considered by Adjudicators, whether that be material submitted by a Referring Party or defences put forward by Respondents, has come before the courts on a number of occasions. The position does now appear to have been clarified following a string of cases.
A novel twist is to be found in the CEDR Solve Rules for Construction Adjudication September 2008.
The Rules largely follow the same pattern as normal incorporating, of course, the statutory requirements of provision of Notices of Adjudication followed by the Referral Notice and supporting documents, decision within 28 days, subject to extension.
The provisions which appear more unusual are: