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A Practical Guide to Construction Adjudication

ISBN: 978-1-118-71794-3
768 pages
October 2015, Wiley-Blackwell
A Practical Guide to Construction Adjudication  (1118717945) cover image

Description

In the United Kingdom, adjudication is available as a right for parties to a construction contract, following the enactment of the Housing Grants Construction and Regeneration Act 1996. In general, within a comparatively short period of time, parties in dispute will have a decision from an adjudicator, which, except in limited circumstances, the courts will enforce. Adjudication has become the number one method of dispute resolution in the construction industry.

The short timescale means that a party needs to know what to do, when to do it and be able to check that the other party and the adjudicator are following the right steps. A Practical Guide to Construction Adjudication gives parties the necessary information to achieve this. It provides a straightforward overview of the process and procedure of adjudication by reference to legislation and case law, augmented with practical guidance including suggestions on what to do or not to do, drafting tips and checklists. Separate chapters for Scotland and Northern Ireland identify and explain the differences in procedure and judicial interpretation between those jurisdictions and England and Wales, and further detailed explanations of the adjudication regimes in Australia, Ireland, Malaysia, New Zealand and Singapore are included. Each of the chapters on jurisdictions outside England and Wales has been written by senior experts in those jurisdictions to ensure the content is accurate and insightful.

There are a range of helpful appendices including a bank of model form adjudication documents and tabulated detailed comparisons of the Scheme for Construction Contracts, the other major adjudication rules, the major adjudicator nominating bodies and the UK and international regimes. Readers will particularly appreciate the most comprehensive index of adjudication cases available, sorted into 260 subject headings providing immediate access to all the reported cases on any adjudication topic.

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Table of Contents

Foreword v

Acknowledgements vii

Part I The United Kingdom

1 Introduction 3

1.1 Overview 3

1.2 Background to statutory adjudication in the UK 4

1.3 Statutory adjudication regimes 5

1.4 Use of case lawin this part 6

2 Adjudication in a nutshell 9

3 Deciding to adjudicate 13

3.1 Overview 13

3.2 Do I have a claim? 14

3.3 Is it worth it? 15

3.3.1 In a nutshell 15

3.3.2 Amount in dispute 15

3.3.3 Likely recovery 16

3.3.4 Professional fees 16

3.3.5 Resources 17

3.3.6 Relationships 17

3.4 Is adjudication the right forum? 18

3.4.1 In a nutshell 18

3.4.2 Advantages 18

3.4.3 Disadvantages 21

3.4.4 Statistics 24

3.5 Other forms of ‘rapid’ dispute resolution 24

3.5.1 In a nutshell 24

3.5.2 Early neutral evaluation 24

3.5.3 Expert determination 25

3.5.4 Mediation 26

3.5.5 Fast-track arbitration 27

3.5.6 Statutory demand or winding-up petition 29

3.5.7 Part 8 claim 29

3.5.8 Summary judgment 29

3.6 Adjudication on behalf of, or against, an insolvent party 30

3.6.1 In a nutshell 30

3.6.2 Why do it? 30

3.6.3 Trigger for insolvency 31

3.6.4 Liquidation 33

3.6.5 Voluntary or compulsory administration 37

3.6.6 Administrative receivership 38

3.6.7 A company voluntary arrangement (CVA) 38

3.6.8 Bankruptcy 39

3.6.9 Individual voluntary arrangement (IVA) 39

3.6.10 Problems enforcing the adjudicator’s decision 39

3.7 Who to involve 40

3.7.1 In a nutshell 40

3.7.2 In-house lawyers 40

3.7.3 External lawyers 41

3.7.4 Claims consultants 41

3.7.5 Experts 41

3.7.6 Project team 42

3.8 Checklist: considering whether or not to adjudicate 42

4 Statutory adjudication 43

4.1 Overview 43

4.2 Old or new act 44

4.3 Existence and terms of a contract 44

4.3.1 In a nutshell 44

4.3.2 Contract formation and terms 45

4.3.3 Contract terminated 46

4.3.4 Void or voidable contract 46

4.3.5 Choice of terms 47

4.3.6 Incorporation of terms 47

4.4 Construction contract 49

4.4.1 In a nutshell 49

4.4.2 Carrying out, arranging, providing labour for construction operations (Act s. 104(1)) 49

4.4.3 Consultants and advisers (Act s. 104(2)) 50

4.4.4 Contracts of employment (Act s. 104(3)) 50

4.4.5 Construction operations and other matters (Act s. 104(5)) 50

4.4.6 Application of the Act to contracts (Act s. 104(6)) 51

4.4.7 Ancillary agreements 52

4.5 Construction operations 55

4.5.1 In a nutshell 55

4.5.2 Definition of construction operations (Act s. 105(1)) 55

4.6 Excluded construction operations 58

4.6.1 In a nutshell 58

4.6.2 Approach to interpreting the exclusion provisions at section 105(2) of the Act 59

4.6.3 Court’s approach to applying the exclusions at subsection 105(2) 59

4.6.4 Drilling and extraction (Act s. 105(2)(a) and (b)) 60

4.6.5 Assembly, installation, erection, demolition in connection with certain activities (Act s. 105(2)(c)) 60

4.6.6 Manufacture, delivery, installation (Act s. 105(2)(d)) 62

4.7 Excluded agreements 62

4.7.1 In a nutshell 62

4.7.2 Residential occupier (Act s. 106(1)(a) and (2)) 63

4.7.3 Exclusion Order (2009 Act, s. 106A; 1996 Act, s. 106(1)(b)) 64

4.8 Contract in writing 66

4.8.1 In a nutshell 66

4.8.2 2009 Act 67

4.8.3 1996 Act only applies to agreements in writing (1996 Act s. 107(1)) 68

4.8.4 ‘In writing’ (1996 Act s. 107(2)) 68

4.8.5 An agreement made ‘otherwise than in writing’ (1996 Act s. 107(3)) 69

4.8.6 An agreement ‘evidenced in writing’ (1996 Act s. 107(4)) 70

4.8.7 ‘An exchange of written submissions in adjudication proceedings’ (1996 Act s. 107(5)) 70

4.8.8 Scenarios 71

4.9 Checklist: What form of adjudication am I subject to? 74

5 Contractual and ad hoc adjudication 75

5.1 Overview 75

5.2 Contractual adjudication 75

5.2.1 In a nutshell 75

5.2.2 What is a contractual adjudication? 76

5.2.3 Treatment of contractual adjudications by the court 77

5.3 Ad hoc adjudication 79

5.3.1 In a nutshell 79

5.3.2 Ad hoc adjudication by choice 79

5.3.3 Ad hoc jurisdiction by mistake 80

5.3.4 Ad hoc jurisdiction on issues 82

6 Adjudication procedure 83

6.1 Overview 83

6.2 Scheme 84

6.2.1 In a nutshell 84

6.2.2 Does the Scheme apply and the failure to comply with section 108(1)–(4) (Act s. 108(5) and 114(4)) 84

6.2.3 Why choose the Scheme? 86

6.2.4 Scheme variants 87

6.3 Contractual procedures 88

6.3.1 In a nutshell 88

6.3.2 JCT 89

6.3.3 ICE/ICC 90

6.3.4 IChemE 91

6.3.5 NEC 92

6.3.6 TeCSA 93

6.3.7 CIC 94

6.3.8 CEDR Solve 95

6.3.9 Bespoke rules 96

6.4 Checklist:What adjudication procedure am I subject to? 96

7 Preconditions and restrictions to statutory adjudication 97

7.1 Overview 97

7.2 Is there a dispute? 98

7.2.1 In a nutshell 98

7.2.2 Court’s approach 98

7.2.3 A claim must have been made 99

7.2.4 The meaning of ‘dispute’ (Act s.108(1)) 100

7.2.5 The point at which to assess whether or not there is a dispute 102

7.2.6 Time period following a claim until a dispute is formed 102

7.2.7 Ambush 104

7.2.8 Scenarios 104

7.3 More than one dispute 108

7.3.1 In a nutshell 108

7.3.2 More than one dispute (Act s. 108(1)) 109

7.3.3 The Scheme (Scheme p. 8) 111

7.4 Substantially the same dispute (Scheme p. 9) 111

7.4.1 In a nutshell 111

7.4.2 Substantially the same dispute 112

7.5 Does the dispute arise ‘under’ the contract (Act s. 108(1))? 115

7.5.1 In a nutshell 115

7.5.2 Meaning of ‘under’ the contract 115

7.6 More than one contract 117

7.6.1 In a nutshell 117

7.6.2 More than one contract (Act s. 108(1)) 118

7.6.3 Scheme (Scheme p. 8(2)) 119

7.7 Commencing an adjudication ‘at any time’ 119

7.7.1 In a nutshell 119

7.7.2 Act (Act s. 108(2)(a)) 119

7.7.3 Conclusivity clauses 121

7.7.4 Statutory limitation 122

7.7.5 Insolvent party 122

8 Adjudication strategy 123

8.1 Overview 123

8.2 Commencing the adjudication process 123

8.2.1 Choosing the right time to start 123

8.2.2 Getting in there first 124

8.3 More than one adjudication 125

8.3.1 Multiple adjudications during the project 125

8.3.2 Concurrent adjudications 125

8.4 Choosing the dispute to refer 126

8.4.1 Appropriate expertise 126

8.4.2 Pecuniary and declaratory claims 127

8.4.3 Contractual interpretation 128

8.4.4 ‘Smash and grab’ 129

8.4.5 ‘Cherry-picking’ 136

8.4.6 Large-scale adjudications 137

8.4.7 Without prejudice correspondence 139

8.5 Deploying arguments 139

8.5.1 Save the best until last 139

8.5.2 Reverse ambush 140

8.6 Assessing the other party’s willingness and ability to pay 141

8.6.1 Securing assets before the adjudication 141

8.6.2 Can the other party pay? 142

8.7 Removing procedural uncertainty 142

8.7.1 Taking a jurisdiction point early 142

9 Initiating the adjudication 144

9.1 Overview 144

9.2 A precis on jurisdiction and natural justice 145

9.3 Notice of adjudication 146

9.3.1 In a nutshell 146

9.3.2 The Scheme (Scheme p. 1(2) and (3)) 147

9.3.3 Practical considerations 147

9.4 Checklist: Before serving the notice of adjudication – referring party 151

9.5 Checklist: On receiving the notice of adjudication – responding party 151

9.6 Appointing the adjudicator 152

9.6.1 In a nutshell 152

9.6.2 Timing (Act s. 108(2)(b), Scheme p. 7) 152

9.6.3 Appointment procedure (Scheme p. 2, 3, 5 and 6) 153

9.6.4 Inoperable procedure or defective appointment 155

9.6.5 Appointment by an ANB 156

9.6.6 Choosing the right ANB where one is not specified 158

9.6.7 Forum shopping 160

9.6.8 Appointment of an individual named in the contract 161

9.6.9 Nominated or appointed adjudicator too busy, unwilling or unable to act 162

9.6.10 Natural person and no conflict of interest (Scheme, p. 4) 163

9.6.11 Objections to the appointed adjudicator (Scheme, p. 10) 163

9.6.12 A party’s assessment of an adjudicator’s capability 164

9.6.13 The prospective adjudicator’s assessment of whether he should accept the appointment 166

9.6.14 Post appointment before the dispute is referred 167

9.6.15 Adjudicator’s agreement 167

9.6.16 Revoking the adjudicator’s appointment (Scheme p. 11) 170

9.7 Checklist: Appointing the adjudicator – referring party 171

9.8 Checklist: Appointing the adjudicator – responding party 171

9.9 Checklist: Accepting the appointment – adjudicator 172

10 The adjudication 173

10.1 Overview 173

10.2 Referral notice 174

10.2.1 In a nutshell 174

10.2.2 Timing (Act s. 108(2)(b)) 174

10.2.3 Scheme (Scheme p. 7) 175

10.2.4 Practical considerations and strategy 177

10.2.5 Actions for the adjudicator once the dispute is referred 180

10.3 Response 181

10.3.1 In a nutshell 181

10.3.2 Timing 182

10.3.3 Practical considerations and strategy 182

10.4 Reply, rejoinder and sur-rejoinder 184

10.4.1 In a nutshell 184

10.4.2 Practical considerations and strategy 184

10.4.3 Parallel correspondence 186

10.5 Meetings 186

10.6 Other matters 188

10.6.1 In a nutshell 188

10.6.2 Communicating with the other party and with the adjudicator during the adjudication 189

10.6.3 Pressure from the parties or the adjudicator 190

10.6.4 Set-off and abatement 191

10.6.5 Dropping a head of claim during the adjudication 194

10.6.6 Withdrawing from the adjudication entirely 195

10.6.7 Privilege 195

10.6.8 Disclosure of documents 198

10.6.9 Settlement offers 199

10.6.10 Staying adjudication proceedings 199

10.6.11 Confidential nature of adjudication (Scheme p. 18) 200

10.6.12 Service of documents and notices (Act s. 115) 200

10.6.13 Reckoning of time (Act s. 116) 201

10.7 Adjudicator’s powers and duties 201

10.7.1 In a nutshell 201

10.7.2 Duty to act impartially (Act s. 108(2)(e) and Scheme p. 12(a)) 201

10.7.3 Power to take the initiative (Act s. 108(2)(f ) and Scheme p. 13) 202

10.7.4 Power to make requests or directions (Scheme p. 14 and 15) 204

10.7.5 Power to seek assistance (Act s. 108(2)(f ) and Scheme p. 13(f )) 205

10.7.6 Duty to consider relevant information and provide it to the parties (Scheme p. 17) 206

10.7.7 Scope of what the adjudicator can decide (Scheme p. 20(a) and (b)) 207

10.7.8 Power to award interest (Scheme p. 20(c)) 208

10.7.9 Power to award damages 209

10.7.10 Adjudicator’s immunity (Act s. 108(4), Scheme p. 26) 209

10.7.11 Adjudicator resignation (Scheme p. 9) 210

10.8 Checklist: Managing the adjudication – the adjudicator 212

11 The decision 214

11.1 Overview 214

11.2 What is the adjudicator required to do? 214

11.2.1 In a nutshell 214

11.2.2 Purpose and nature of the decision 215

11.2.3 Structure, format and content of the decision 216

11.2.4 Reasons 217

11.3 On receiving the decision 218

11.4 Timing 219

11.4.1 In a nutshell 219

11.4.2 Act and Scheme (Act s. 108(2)(c) and (d) and Scheme p.19) 219

11.4.3 Rigidity of the time limit 222

11.4.4 Decision made and decision communicated 222

11.4.5 Responding to the adjudicator’s request for an extension 223

11.5 Effect and compliance 223

11.5.1 In a nutshell 223

11.5.2 Temporary finality (Act s. 108(3), Scheme p. 23) 224

11.5.3 Compliance with the decision (Scheme p. 21) 225

11.5.4 Delaying compliance by contract 225

11.5.5 Insurance claims 226

12 Post decision 227

12.1 Overview 227

12.2 Adjudicator’s costs 228

12.2.1 In a nutshell 228

12.2.2 2009 Act and 2011 Scheme (2009 Act s. 108A; 2011 Scheme p. 25) 228

12.2.3 1996 Act and 1998 Scheme (1998 Scheme p. 25) 228

12.2.4 Liability for fees 229

12.2.5 Reasonableness of fees and expenses 231

12.2.6 Lien on the decision 232

12.2.7 Payment of fees when the decision is in breach of natural justice 232

12.2.8 Award of adjudicator’s costs 232

12.2.9 Payment of fees on paying party’s insolvency 233

12.3 Parties’ costs 233

12.3.1 In a nutshell 233

12.3.2 2009 Act (s. 108A) 233

12.3.3 1996 Act 234

12.3.4 The Late Payment of Commercial Debt (Interest) Act 1998 235

12.4 Apportioning costs 237

12.4.1 In a nutshell 237

12.4.2 Timing 237

12.4.3 Assessment 238

12.5 Correcting errors in the decision 239

12.5.1 In a nutshell 239

12.5.2 The 2009 Act and 2011 Scheme (2009 Act s. 108(3)(A); 2011 Scheme p. 22A) 239

12.5.3 The 1996 Act and 1998 Scheme 240

12.6 Setting off against the decision 241

12.6.1 In a nutshell 241

12.6.2 General rule and exceptions 241

12.6.3 Contractual right to set off 243

12.6.4 Later interim or final certificate 244

12.6.5 Issuing a withholding or pay less notice 244

12.6.6 Setting off liquidated damages 245

12.6.7 Set off permitted but not quantified in the decision 246

12.6.8 Set-off not formulated before the adjudication 247

12.6.9 Adjudication rules prevent set-off in enforcement proceedings 247

12.6.10 Multiple adjudications 247

12.6.11 Litigation on foot 248

12.6.12 Arbitration award 248

12.6.13 Other arguments for set-off 248

13 Enforcement: options and procedure 249

13.1 Overview 249

13.2 Key statements of principle and the court’s policy 249

13.2.1 Principles of enforcement 249

13.2.2 Enforcement for contractual adjudications 252

13.3 TCC summary enforcement procedure 252

13.3.1 In a nutshell 252

13.3.2 Nature of summary judgment applications in adjudication 253

13.3.3 Options for commencing the claim 256

13.3.4 Commencing the claim 256

13.3.5 Directions 260

13.3.6 Responding to the claim 260

13.3.7 Submission of cost budgets 261

13.3.8 Hearing bundle and skeletons 261

13.3.9 Extent of the evidence to be submitted 262

13.3.10 Judgment in default and setting aside 262

13.3.11 Representation 263

13.3.12 Timetable to a decision 264

13.3.13 The decision 264

13.3.14 The effect of the court’s decision 265

13.3.15 Setting aside a summary judgment 266

13.3.16 Costs: basis of assessment 266

13.3.17 Costs: assessment of the bill of costs 269

13.3.18 Costs: ATE insurance and conditional fee arrangements 272

13.3.19 Costs: interest 272

13.3.20 Costs: settlement reached before summary judgment 273

13.3.21 Appealing a judgment of the court 273

13.3.22 Staying enforcement proceedings where there is an arbitration agreement (s. 9 Arbitration Act 1996) 274

13.4 Other procedures for enforcement 276

13.4.1 In a nutshell 276

13.4.2 Pre-emptory order (Scheme p. 23(1) and 24) 276

13.4.3 Mandatory injunction 277

13.4.4 Statutory demand 278

13.4.5 Scotland 280

13.5 Complying with an order of the court 280

13.5.1 In a nutshell 280

13.5.2 Time for payment 280

13.5.3 Extending the time for payment 281

13.5.4 Failing to comply 281

13.6 Checklist: Avoiding the consequences of an adjudicator’s decision 284

14 Enforcement: insolvency, stay and severability 285

14.1 Overview 285

14.2 Insolvency avoids summary judgment 286

14.2.1 In a nutshell 286

14.2.2 Liquidation 287

14.2.3 Administration 287

14.2.4 Administrative receivership 289

14.2.5 CVA 289

14.2.6 Individual insolvency or bankruptcy 290

14.3 Stay of execution 290

14.3.1 In a nutshell 290

14.3.2 Court’s discretion to order a stay of execution 291

14.3.3 Insolvency proceedings pending or not concluded 293

14.3.4 Financial difficulty 296

14.3.5 Imminent resolution of other proceedings 298

14.3.6 Manifest injustice 299

14.3.7 Other circumstances in which an application for a stay has failed 299

14.3.8 Partial stay 300

14.3.9 Conditions imposed on granting the stay 301

14.3.10 Severability 301

15 Final determination 304

15.1 Overview 304

15.2 Finalising the adjudicator’s decision 305

15.2.1 In a nutshell 305

15.2.2 Adjudicator’s decision made final by contract 305

15.2.3 Adjudicator’s decision made final by agreement 306

15.2.4 Adjudicator’s decision made final by the passing of time 306

15.3 Adjudication and other proceedings 307

15.3.1 In a nutshell 307

15.3.2 Final determination at the same time as enforcement proceedings 307

15.3.3 Final determination at the same time as adjudication 308

15.3.4 Final determination without complying with the adjudicator’s decision 309

15.3.5 Final determination in breach of the contractual dispute resolution procedure (including an agreement to adjudicate) 309

15.4 Commencement, onus of proof and costs 312

15.4.1 In a nutshell 312

15.4.2 Cause of action and limitation period for commencing final proceedings 312

15.4.3 Delaying the final determination 314

15.4.4 Onus of proof in subsequent proceedings 315

15.4.5 Final decision different to adjudicator’s decision 315

15.4.6 Recovery of adjudication costs as part of the costs of a final determination 315

16 The adjudicator’s jurisdiction 319

16.1 Overview 319

16.2 When to think about jurisdiction 319

16.3 Options when a jurisdictional issue arises 320

16.3.1 In a nutshell 320

16.3.2 Option 1: Determination from the court 321

16.3.3 Option 2: Determination by the adjudicator 324

16.3.4 Option 3: Determination from another adjudicator 326

16.3.5 Option 4: Reserve the position and proceed with the adjudication 327

16.3.6 Option 5:Withdraw 328

16.3.7 Option 6: Injunction 329

16.4 Losing the right to challenge the adjudicator’s jurisdiction 331

16.4.1 In a nutshell 331

16.4.2 Waiver 332

16.4.3 No reservation or late reservation 333

16.4.4 Abandoning the reservation 334

16.4.5 Initial consent before objection 335

16.4.6 Approbation and reprobation 335

16.4.7 Consequence of losing the right: ad hoc jurisdiction 338

16.5 Threshold jurisdiction challenges 338

16.5.1 In a nutshell 338

16.5.2 No contract 339

16.5.3 Contract is not a construction contract 339

16.5.4 Construction contract is not in writing 340

16.5.5 No dispute 340

16.5.6 More than one dispute 341

16.5.7 Substantially the same dispute 341

16.5.8 Dispute not under the contract 342

16.6 Process jurisdiction challenges 342

16.6.1 In a nutshell 342

16.6.2 Incorrect parties named 343

16.6.3 Adjudicator not correctly appointed 344

16.6.4 Referral notice served out of time 347

16.6.5 Arguments outside the scope of the dispute 347

16.6.6 Defective service 348

16.6.7 New material during the adjudication 348

16.6.8 Other procedural improprieties 349

16.7 Decision based jurisdiction challenges 349

16.7.1 In a nutshell 349

16.7.2 Lien over the decision 350

16.7.3 Failure to reach the decision within the required timescale 350

16.7.4 Signing the decision 351

16.7.5 Sufficiency of written reasons 351

16.7.6 Scope of the decision 353

16.7.7 Errors 357

16.7.8 Correcting minor errors in the decision 360

16.8 Checklist: Jurisdiction – the parties 360

16.9 Checklist: Jurisdiction – the adjudicator 361

17 Natural justice 362

17.1 Overview 362

17.1.1 What is it? 362

17.1.2 Materiality 363

17.2 When to think about natural justice 364

17.3 Options when a natural justice point arises 364

17.4 Bias and apparent bias 366

17.4.1 In a nutshell 366

17.4.2 Actual bias 367

17.4.3 Apparent bias 368

17.4.4 Prior involvement in the project or in a separate dispute 369

17.4.5 Appointment of the same adjudicator 370

17.4.6 Communication between the adjudicator and one party: pre-appointment 371

17.4.7 Communication between the adjudicator and one party: post-appointment 373

17.4.8 Evidence 373

17.4.9 Failure to make information available to the parties 375

17.4.10 Failure to carry out a site visit 375

17.4.11 Organisation of meetings and hearings 376

17.4.12 Quasi-mediator 376

17.4.13 Without prejudice communications 377

17.4.14 Preliminary view 377

17.5 Procedural fairness 378

17.5.1 In a nutshell 378

17.5.2 Referring party’s conduct pre-adjudication 379

17.5.3 Abuse of process 380

17.5.4 Ambush/no opportunity or insufficient opportunity to respond 380

17.5.5 Christmas claims 382

17.5.6 Dispute is too large or complex 382

17.5.7 Failing to address an issue, part of a submission or evidence 384

17.5.8 Failure to permit a further submission or information 389

17.5.9 Failure to follow the agreed procedure 390

17.5.10 Adjudicator’s timetable unfair 391

17.5.11 Documents received late or not at all 391

17.5.12 Failure to inform the parties about an approach taken or methodology used 392

17.5.13 Failure to inform the parties about advice from a third party 395

17.5.14 Failure to inform the parties about use of own knowledge and expertise 395

17.5.15 Failure to inform the parties about preliminary view 397

17.5.16 Sufficiency of reasons 398

17.6 Checklist: Natural justice – the parties and the adjudicator 399

18 Further grounds for resisting enforcement 400

18.1 Overview 400

18.2 Fraud or deceit 401

18.3 Duress 402

18.4 UTCCR 403

18.5 Human Rights Act 404

19 Scotland: Tony Jones 406

19.1 Overview 406

19.2 Differences between the Scheme and the Scottish Scheme 408

19.2.1 1998 Scheme and 1998 Scottish Scheme 408

19.2.2 2011 Scheme and 2011 Scottish Scheme 410

19.3 Enforcement of an adjudicator’s award 411

19.3.1 In a nutshell 411

19.3.2 Enforcement procedure 412

19.3.3 Counterclaims 414

19.3.4 The Scottish courts’ approach to jurisdictional challenges 415

19.3.5 The Scottish courts’ approach to natural justice challenges 416

19.3.6 Miscellaneous points 417

19.4 Issues of divergence between England andWales and Scotland 418

19.4.1 In a nutshell 418

19.4.2 Failure to comply with subsections 108(1)–(4) of the Act 418

19.4.3 Adjudicator’s decision out of time 419

19.4.4 Parties’ costs under the 1996 Act 419

19.4.5 Insolvency 420

19.4.6 Approbation and reprobation 422

19.4.7 The size and nature of the claim 422

19.4.8 Abuse of process 423

19.4.9 The adjudicator taking advice from a third party or using his own knowledge 424

19.4.10 Human Rights Act 425

20 Northern Ireland: Michael Humphreys QC 427

20.1 Overview 427

20.2 Enforcement of adjudicators’ awards 429

20.2.1 The writ of summons 430

20.2.2 The application for summary judgment 431

20.2.3 The hearing of the application 432

20.2.4 Incidence of costs 433

20.2.5 Taxation of costs 433

20.2.6 Enforcement of judgments 434

20.3 An alternative remedy – declaratory relief 434

20.4 Judicial consideration 435

20.4.1 In a nutshell 435

20.4.2 No construction contract 435

20.4.3 No dispute 436

20.4.4 Setting off against an adjudicator’s decision 437

20.4.5 Financial difficulty of the paying party 437

20.4.6 Insufficient time to respond 439

20.4.7 Abuse of process 439

Part II International

21 Introduction 443

22 Australia: PeterWood and Phillip Greenham 446

22.1 Overview 446

22.1.1 Initial introduction in NSW 446

22.1.2 Rollout across the remaining states 447

22.1.3 East-west coast divide 448

22.1.4 Consequences of the divide 448

22.2 Requirements for commencing an adjudication 449

22.2.1 Construction contract 449

22.2.2 Construction work 450

22.2.3 Claimable variations and excluded amounts in Victoria 451

22.2.4 Reference date 451

22.2.5 Time limits 452

22.2.6 Who may refer a dispute under a construction contract to adjudication? 453

22.3 Adjudication process 453

22.3.1 Appointment of the adjudicator 453

22.3.2 Conduct of the adjudication 455

22.4 Determination, effect and costs 456

22.4.1 Form of the decision 456

22.4.2 Effect of the decision 456

22.4.3 Costs 457

22.5 Enforcement 458

22.5.1 Process for enforcement 458

22.5.2 Express rights of appeal 458

22.5.3 Judicial review of adjudication determinations 459

23 Ireland: DermotMcEvoy 461

23.1 Overview 461

23.2 Requirements for commencing an adjudication 462

23.3 Adjudication process 464

23.3.1 Notice of adjudication 464

23.3.2 Appointment of an adjudicator 465

23.3.3 Powers and duties of an adjudicator 467

23.4 Determination, effect and costs 469

23.5 Enforcement 470

23.6 Conclusion 471

24 Malaysia: Philip Koh 473

24.1 Overview 473

24.2 Requirements for commencing the adjudication process 474

24.2.1 What contracts are caught by the 2012 Act? 474

24.2.2 Retrospective effect of the 2012 Act 478

24.3 Adjudication process 478

24.3.1 Step 1: Payment claim 479

24.3.2 Step 2: Initiation of adjudication 479

24.3.3 Step 3: Appointment 479

24.3.4 Step 4: Submissions 480

24.3.5 Step 5:The adjudicator 480

24.4 Administration of the adjudication 481

24.5 Determination, effect and costs 482

24.5.1 Form and timing of the decision 482

24.5.2 Effect of the decision 482

24.5.3 Costs 483

24.6 Enforcement 484

24.6.1 Suspension or a reduction in the pace of work 484

24.6.2 Secure direct payment from principal 485

24.7 Conclusion 485

25 New Zealand: T´omas Kennedy-Grant QC 487

25.1 Overview 487

25.2 Requirements for commencing an adjudication 488

25.3 Adjudication process 490

25.4 Determination, effect and costs 493

25.4.1 Rights of a non-respondent owner 496

25.5 Enforcement 496

25.5.1 Judicial review 499

25.6 Proposed amendments 500

26 Singapore: Steven Cannon 501

26.1 Overview 501

26.2 Requirements for commencing an adjudication 502

26.2.1 What contracts are caught by the 2004 Act? 502

26.2.2 Contracting out, the date of execution of the contract and contracts made in writing 503

26.3 Payment regime 504

26.3.1 The right to progress payments 504

26.3.2 The payment regime 504

26.3.3 The crystallisation of a dispute and the dispute settlement period 507

26.4 Adjudication process 508

26.4.1 The role of the Singapore Mediation Centre 508

26.4.2 Notice of an intention to adjudicate 508

26.4.3 The adjudication application 509

26.4.4 The role of the adjudicator 512

26.5 Determination, effect and costs 515

26.5.1 The adjudicator’s determination 515

26.5.2 The costs of the adjudication 516

26.5.3 Adjudication review applications 517

26.5.4 The effect of an adjudicator’s determination 517

26.6 Enforcement 518

26.6.1 Enforcement of the adjudicator’s determination 518

26.6.2 Setting aside the adjudicator’s determination 518

26.7 Conclusion 520

Appendices

Appendix 1 –The 1996 Act as amended 523

Appendix 2 –The 1998 Scheme as amended 530

Appendix 3 – Glossary (UK only) 538

Appendix 4 –Model forms 542

Appendix 5 – Summary comparison of UK adjudication rules 561

Appendix 6 – Details of UK adjudicator nominating bodies 570

Appendix 7 – Comparison of UK and international statutory regimes 578

Appendix 8 – Case index: by subjectmatter 584

Appendix 9 – Alphabetical case index 678

Index 709

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Author Information

James Pickavance is a partner in the construction and engineering practice of Eversheds LLP, specialising in dispute resolution. He has experience of all forms of dispute resolution, in particular contractual and statutory adjudication, domestic and international arbitration, expert determination, mediation and litigation, and advises public bodies, governments, international corporations and private clients on domestic and international, single or multi-jurisdictional disputes across a range of industry sectors in over 20 jurisdictions.

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Reviews

"If one had to name a single outstanding feature of the text, it would be its structure as a formidable practice tool. I share the sentiments of The Honourable Mr Justice Edwards-Stuart, expressed in the book's foreword, that it sets out not to rival existing works (such as the leading adjudication text by Mr Justice Coulson), but to complement them. This book does not dwell in the dominion of academic debate. It is instead structured around the questions that inevitably arise in the conduct of every-day construction business and, of course, when payment disputes arise. Its answers to these questions are concise, accurate, and commercially acute. It is well-suited for any adviser or decision-maker in the construction industry, to whom I would recommend this book strongly."
Professor Doug S Jones AO, International Construction Law Review, Part 3 July 2016  


"The name of Pickavance is a well-known one in dispute circles, and James is a chip off the old block. It seems a fair bet that through this very practical but at the same time scholarly work he will become as well known and regarded as his father and uncle. The book could perfectly well serve as a key resource for lawyers, construction claims consultants and adjudicators. It will certainly be a book I turn to for guidance on knotty adjudication issues."
Jeremy Winter, FCInstCES, Adjudicator, Civil Engineering Surveyor 05.16


From the foreword

Part 1 of this book, whilst fully supported by references to decided cases, is very much directed towards the practitioner who has to advise his or her client on a construction dispute and then conduct or defend proceedings brought by way of adjudication. To this end it provides a clear route map together with helpful checklists at the conclusion of each chapter. It is this different approach that I think readers will find so helpful. The guidance in relation to insolvency and administration is particularly valuable. As an added benefit, there is Part 2 – which deals with adjudication in other jurisdictions. I know of no other similarly comprehensive guide and it is a fascinating and illuminating source of reference. This book does not set out to be a rival to existing works but to complement them. That is a role that I have no doubt that readers will find that it amply fulfils.
The Hon Mr Justice Edwards-Stuart


Solicitor James Pickavance has really come up to snuff. He has gone for a practical guide to adjudication. Pickavance is a partner at Eversheds: The firm can be proud of the book. He tells the reader what to do and when and how and why. …yes it is a must for the representative lawyers/consultants … yes for the adjudicators … yes especially for you contractors. Pickavance’s book style is practical too. I do like his “In a Nutshell” paragraphs.
Tony Bingham, Building Magazine, 04.12.15


This book certainly lives up to its name – the reader is navigated through adjudication with each chapter starting with an overview of the subject matter which is then addressed by individual topics initially caught by an ‘in a nutshell’ paragraph followed by excellent discussion with clear signposting to the relevant case law. It is evident throughout that the focus of this text is on practicality, a key theme which flows throughout the entirety of the book, offering sound advice to parties at all stages of the process – including before and after the adjudication itself. Finally the book provides a comparison of UK and international statutory regimes – something no one else has published to date as far as I am aware – which ensures the subject of statutory adjudication is well and truly covered in one book! The author is to be congratulated on the practical and strategic guidance offered to those involved in the process at various levels– this book certainly delivers – it will prove a very useful tool.
Janey L. Milligan, Construction Law

… the author is to be commended for producing an interesting, informative and a very detailed analysis of the Adjudication process. There is a comprehensive analysis of various cases, and the author has provided an interesting case index by subject matter, which is extremely helpful I have no doubt that … this extensive publication will be of interest to future Adjudicators and party representatives, and it is crammed with helpful commentaries on the practical aspects of Construction Adjudication. It is without doubt, in my view, that this textbook will be an essential addition to the library of the practitioner, and is a very useful reference point, and is also very reasonably priced as well.
Len Bunton, Chartered Institute of Arbitrators

The author has produced a clear and sensible guide to the subject. The guide is thorough and well-researched. The author’s discussions are generally lucid and helpful and he has wisely avoided the temptation to go into too much academic debate. I particularly liked his use of ‘nutshell’ introductions and shaded ‘checklists’ at the end of lengthier sections. I warmly recommend this book to the construction industry, adjudicators and lawyers alike. Mr Pickavance clearly has a wise head on his relatively young shoulders and he and his publisher deserve to be congratulated on this achievement: kudos!
Nick Lane, Construction News

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