Matt Molloy, director:

Last week I wrote about the severance points in Working Environments v Greencoat, but I think the withholding notice points that arise from Akenhead J’s judgment are equally interesting.

As I’m sure everyone is familiar with section 111 of the Construction Act 1996 and the requirements of a withholding notice, I’m not going to set them out here. Instead, I’m going to focus on the relationship between withholding notices under section 111 and adjudicators’ decisions. Read the rest of this entry »

Matt Molloy, director:

It may have been a long time coming, but it seems the courts have finally severed an adjudicator’s decision (I’m conveniently ignoring the judgment in Geoffrey Osborne v Atkins Rail, as I don’t think that is quite the same thing).

In Working Environments v Greencoat, Akenhead J had to decide whether the adjudicator had jurisdiction to decide about two items, valued at £21,000 (plus VAT). He decided he didn’t, and so then had to consider whether the remainder of the adjudicator’s decision could still be enforced (that part was valued at £230,000 plus VAT). Akenhead J held that there was no reason why the substance of the adjudicator’s decision should not be enforced, and so he gave judgment in WE’s favour. He severed the two items valued at £21,000. Read the rest of this entry »

Matt Molloy, director:

It is probably fair to say that adjudication favours the referring party. After all, the referring party can spend as much (or as little) time as it wants preparing its claim, collating evidence, proofing witnesses and getting its expert evidence in place. On the other hand, the responding party is up against the clock from the moment it receives the notice of adjudication. I’d say there is a world of difference between knowing a claim may result in a notice of adjudication, and actually having to respond to one when it lands on your desk. Anyone having experienced this will know just how quickly the clock hands go around, once it starts ticking. Read the rest of this entry »

Jonathan Cope, director:

To answer my own question, “Are dispute boards a viable means of resolving disputes in the UK?”, I’d say yes. Others may disagree, but I’ll explain why I think this. Read the rest of this entry »

Director, Matt Molloy:

I realised the other day that it was a little over six months since the amendments to the Construction Act 1996 came into force. I don’t know about you, but it only feels like five minutes since we were reading about the amendments and how they were going to impact on construction contracts and those involved in the industry, not only on how the Act was changing, but also in terms of the impact on payment and the number of otherwise excluded parties who would now be able to use adjudication to resolve their disputes.

But has life really changed and, from my perspective, has life changed for adjudicators? Read the rest of this entry »

Jonathan Cope, director:

In my last blog I talked about Walter Lilly & Company Ltd v Giles Mackay and DMW Developments Ltd, where Akenhead J found that advice given by claims consultants does not attract legal professional or legal advice privilege. 

That got me thinking about disclosure and privilege in adjudication proceedings. Disclosure requests are certainly something I’m seeing more and more of, so I thought it would be useful to set out my thoughts on the subject. Read the rest of this entry »

Matt Molloy, director:

In my post, The vexed question of adjudicators fees, I discussed ways that the adjudicator and the parties could manage the adjudication process to keep costs down.

That post sets out the background to this issue and refers to the Adjudication Society panel debate, Adjudicator’s fees and the costs of adjudication - over the top?, which was held at the offices of Charles Russell LLP last month.

This post looks at other issues related to adjudicators’ fees, such as the level of fees, the perceived lack of regulation and accountability of adjudicators, and challenging the reasonableness of the adjudicator’s overall fee. Read the rest of this entry »

Jonathan Cope, director:

I recently wrote about West Country Renovations v Mr & Mrs McDowell. While it wasn’t strictly necessary for the purposes of the case, Akenhead J produced a judgment providing guidance on the value and types of claims that the TCC in the High Court in London will deal with. 

Continuing with the theme of providing helpful guidance, earlier this month Akenhead J produced a judgment following a disclosure application in Walter Lilly & Company Ltd v Giles Mackay and DMW Developments Ltd. The guidance in this judgment will be of particular interest to claims consultants and those that appoint them. Read the rest of this entry »

Matt Molloy, director:

As far as I’m aware, during the years of debate over amendments to the Construction Act 1996, when it came to costs, the focus of most peoples’ attention was on getting rid of contract clauses requiring the referring party to pay both parties’ costs (so-called Tolent clauses). I don’t really recall that much time devoted to what some practitioners now regard as a significant problem, namely the level of costs incurred by the adjudicator and the parties to an adjudication. Read the rest of this entry »

Matt Molloy, director:

Jonathan’s last two posts have looked at a few aspects of arbitration, not least the fact that many of the skills we learn as adjudicators are highly useful when it comes to resolving disputes in other ways, especially as an arbitrator.

As someone primarily involved in resolving disputes via adjudication, I’m all too familiar with the skills that Jonathan talked about. Like many others, I’d like to think they are also part of my repertoire and why people appoint me to resolve their disputes. Read the rest of this entry »