A Practical Guide to Construction Adjudication » książka
A Practical Guide to Construction Adjudication
ISBN-13: 9781118717950 / Angielski / Miękka / 2015 / 768 str.
A Practical Guide to Construction Adjudication
ISBN-13: 9781118717950 / Angielski / Miękka / 2015 / 768 str.
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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.
Glosariusz/słownik
"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
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
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.
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. The mandatory and expedited nature of the process are the principal reasons why adjudication has been the number one method of dispute resolution in the construction industry for almost two decades.
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. A Practical Guide to Construction Adjudication serves as an extremely valuable guide for construction solicitors and barristers and all construction professionals, including clients, project managers, architects, contractors, construction consultants, and adjudicators.
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