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| Jurisdiction : Written contract and unwritten contract variations : contract interpretation: Set off for subsequent events: fairness and natural justice: withholding notice procedure : financial insecurity of applicant. All aspects of challenge rejected - enforcement ordered. Jurisdiction challenge not raised in adjudication : Waiver - too late to raise at this stage. TCC. 31st July 2006. |
| by His Honour Judge Toulmin : Crown Copyright / Wordwave |
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| Legal Personality : Illegality : Defendant resisted enforcement of adjudicator's decision. 1) Questioned content of contract : 2) Contracted with individual - not company - and Company Mis-named 3) Illegal conduct of claimant re TAX, VAT, Register of Business name & fabrication of documents - illegal conduct of claim together invalidated the decision. Held : No reasonable prospect of defence prevailing. 10th January 2006. |
| by Her Honour Judge Frances Kirkham : Crown Copyright |
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| Bias : Natural Justice : Dispute regarding liability for and extent of over-time payments arising out of alleged acceleration order. Adjudicator limited scope of an order to 2 sectors but then found that the order was either verbally extended or the extension was acquiesced to. Verbal instructions and acquiescence were not addressed during the adjudication process. Held : Breach of Natural Justice : Outer House, Court of Session. 12th January 2006. |
| by Lord Clarke : Crown Copyright |
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| Insurance : The perenial "Piggy in the Middle dilema" : Contractor held liable to employer by an adjudicator - and required to cover cost of demolition and rebuild : Whether contractor should recover against sub-contract - and or whether adjudicated sum recoverable from underwriters under insurance policy. Outerhouse Court of Session. 23rd May 2006 |
| by Lord Uist. Crown Copyright |
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| Interest on late payment of an adjudicator's decision. Held : In the circumstances of the case a follow up demand for payment of the sum in final settlement, without prejudice to costs, which was complied with amounted to an accord and satisfaction. Accordingly no interest was due. TCC. 20th January 2006. |
| by His Honour Judge Peter Coulson QC. Crown Copyright |
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| Discoveries to facilitate challenge to an adjudicator's decision. Application for pre-action disclosures whilst unusual, acceded to in part. Applicant was out of the loop in respect of matters that concerned on going obligations and information could facilitate settlement and determine issues in respect of lawfulness of determination of contract. TCC. 2nd May 2006 |
| by His Honour Mr Justice Jackson. Crown Copyright |
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| Scheme adjudication : Court found on facts that multiple disputes referred without consent to jurisdiction. A general objection to jurisdiction is sufficient to override assertions of waiver - a party can successfully resist enforcement on new jurisdictional grounds not put to the adjudicator. Bristol Registry. 16th November 2006 |
| by Havelock-Allan QC. Crown Copyright |
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| Jurisdiction : Settlement agreement of a construction dispute stated to be subject to adjudication : Respondent resisted adjudication and enforcement on the grounds that settlement induced by economic duress. Held : No jurisdiction where contract avoided : Duress cannot be the subject matter of an adjudication - no jurisdiction. 8th March 2006 |
| by His Honour Judge David Wilcox. Crown Copyright |
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| De Nouvo Trial : 3 adjudication decisions and an enforcement action embraced in an all embracing de nouvo trial of all the issues in a claim against architects and counter claim to recover monies from adjudication. Essentially 1st two adjudications substantially upheld : 3rd reversed. Counterclaim failed. TCC. 23rd January 2006. |
| by His Honour Judge Thornton QC : Crown Copyright |
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| Insolvency : Post adjudication settlement, with due date for payment of adjudication sum plus interest. Cheque from over-seas bounced. Employers incorporated outside UK. Successful ex-parte application for freezing order to Mr Justice Jackson. Application to extend freezing order and summary enforcement of non-payment of cheque. Application granted. Objections on grounds of non-disclosure dismissed. TCC. 1st November 2006 |
| by Mr Justice Ramsey : Crown Copyright |
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| Final Determination. The questions termporarily settled by the adjudicators are here brought to trial for final determination. Case on-going. Outer House Court of Session. 20th June 2006. |
| by Lord Drummond Young. Crown Copyright |
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| Late Referral : Late decision. Adjudication subject to JCT 1998 - application of clauses 30 and 41A. Adjudicator nominated on day 7 - referral on day 8 : Held : Valid referral - not out of time : Decision finalised late evening of final date provided by extention - emailed 12 1/2 hours later. Held : just within the meaning of delivery "forthwith". Lien over decision is against the contractual and legal regime of HGCRA. Obiter : Potential liability of adjudicator who fails to fulfil contractual obligations to deliver decision on time. TCC. 21st December 2006. |
| by His Honour Judge Peter Coulson. Q.C. Crown Copyright |
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| Successful enforcement action : No defence ? costs will be awarded on an indemnity basis if enforcement resisted and defence dropped pre-trial or at the trial. There is no requirement to accept ?reasonable offers? to settle an award ? since legal entitlement to entire amount. Minor deductions to costs made because it was unnecessary for a partner to be accompanied by assistant in court. 11th October 2006 |
| by His Honour Judge Peter Coulson. Crown Copyright |
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| Disclosure - pre-action CPR : Admissibility & Evidence : Application for disclosure of documentation related to an adjudication (AWG v Rockingham Speedway [2004]) in support of a claim of misrepresentation inducing an investment in that by virtue of the adjudication Morrisson waa aware that the race track would not be fit for purpose (in the event the adjudication decision had not been enforceable). Disclosure ordered. Chancery Division. 16th June 2006. |
| by M Briggs QC. Crown Copyright |
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| Enforcement : Solvency : Failed bankruptcy proceedings and statutory demand - followed by successful enforcement proceedings. No grounds to resist. Defendant cannot complain that adjudication is conducted quickly. Solvency matters are only grounds for a stay of enforcement - not a defence. TCC. 16th January 2006. |
| by His Honour Judge Peter Coulson QC. Crown Copyright |
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| Interim order : 16th January the court ordered enforcement of adjudicator's decision. 20th February following non-payment, court issued an interim charging order with notice of final hearing. It was served 3 days late following correction of a clerical error. Defendant commenced arbitration. Held : Order finalised. 21 day CPR time limit discretionary. Arbitration proceedings no reason not to finalise order. TCC. 15th March 2006. |
| by His Honour Judge Peter Coulson QC : Crown Copyright |
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| Sale Order : Application for an order for sale pursuant to CPR 73.10 as the final stage of proceedings to enforce an adjudicator's decision. TCC. 7th July 2006. |
| by His Honour Judge Peter Coulson : Crown Copyright |
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| Action to set aside main default judgement in respect of the collapse of a wall related to a construction contract and application for summary enforcement of adjudication. 1) Default judgment set aside : 2) Summary enforcement refused : a) not a construction contract under HGCRA arising out of letters of intent : b) referral document submitted 8 days after notice - so invalid notice : Hence no jurisdiction : c) contractor insolvent - so enforcement also declined. TCC. 3rd November 2006 |
| by His Honour Judge Peter Coulson QC: Crown Copyright |
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| Stay : Claimant sought to enforce adjudication decision in its favour for liquidated damages for delay. Defendant had also pursued subsequent proceedings on a final account dispute in respect of which an enforcement hearing was pending. Defendant conceded there were no grounds to oppose the current enforcement action - but sought to combine the two enforcement actions in order to set one off against the other. Court declined the stay. 7th June 2006. |
| by His Honour Judge John Toulmin QC. Crown Copyright |
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| Set Off : Claimant successfully adjudicated a claim and monies became due. The Defendant then successfully adjudicated a dispute but monies had not yet become due. At enforcement hearing court held that the first adjudication could not be set off against the second. The Act and Scheme required immediate payment. A system of rolling balances cannot be operated in respect of successive adjudications. TCC. 6th February 2006. |
| by His Honour Mr Justice Jackson. Crown Copyright |
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| Costs : Appeal : On a correct interpretation of the provision "The Adjudicator may in his discretion direct the payment of legal costs and expenses of one party by another as part of his decision. The Adjudicator may determine the amount of costs to be paid ..... " the adjudicator had jurisdiction to settle the outstanding dispute as to legal costs, even though the applicant had withdrawn the claim. CA. 9th February 2006. |
| by May LJ; Keene LJ; Scott Baker LJ. Crown Copyright |
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Bias : Adjudicator disregarded expert evidence not available at the time the dispute crystallised. Respondent asserted breach of due process and resisted enforcement. Held : Even if in error, if the adjudcator decided on an analysis of facts or law that it was irrelevant this nonetheless within his jurisdiction. This is an inherrent risk within adjudication. TCC. 6th March 2006.
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| by His Honour Mr Justice Jackson. Crown Copyright |
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| Cherry-picking & set off : Damages awarded for for part of EOT claim. Enforcement procedings. Defendant sought to set off LAD's he asserted due on period of EOT claim not allowed - allegedly leading to a negative balance. Assertion non-payment of negative balance equivalent of cherry-picking. Held : LAD's a mere claim not an entitlement yet. Enforcement granted. TCC. 12 October 2006 |
| by His Honour Judge Peter Coulson QC. Crown Copyright |
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| Construction Contract : Oral variations to an otherwise written contract do not take the contract outside the scope of the HGCRA. Where a written contract replaces an oral contract, the oral contract ceases to have effect and the contract is within the scope of the HGCRA. Where two adjudication decisions have been issued one may be set off against the other during enforcement proceedings. No winner - no costs. TCC. 10th July 2006 |
| by His Honour Judge Thornton : Crown Copyright. |
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| Costs : Challenge to costs order. Should costs be awarded on the basis of who writes the cheque pays the costs? Day v Day (2006) EWCA Civ 415, Johnsey Estates v Secretary of State for the Environment [2001] EWCA Civ 535, considered. Held : Both parties wrote a cheque - that one was bigger than the other does not require the court to decide whether a "draw" is a score or no score draw. TCC. 23rd August 2006 |
| by His Honour Judge Thornton : Crown Copyright |
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| Jurisdiction : New contract replaced prior contract which had given rise to disputes in order to seek resolution. Dispute under new contract referred to adjudication. Whether new contract a construction contract. Held : In the circumstances continued prior adjudication provisions. Jurisdiction. TCC. 3rd October 2006. |
| by Mr Justice Jackson. Crown Copyright |
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| Witholding notice : Absence of notice - impact upon winding up petition and application to strike out as an indicator that a cross / counter claim for failure to pay on a valid application was spurious. (N.B. Did not involve an adjudication - applicant proceeded directly to a winding up petition). District Registry Bristol. 13th July 2006. |
| by His Honour Judge Weeks QC. (Acting High Court Judge) : Crown Copyright |
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Application for summary enforcement of a settlement agreement. The Court held that a dispute arising out of a compromise agreement to a construction dispute is not a construction dispute for the purposes of the HGCRA. It could not be referred to adjudication and was not amenable to enforcement by way of summary judgement. Outer House Court of Session
7th September 2006. |
| by Lord Drummond Young : Crown Copyright |
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| Legal Personality : Jurisdiction : Who is liable for work to a Rugby Club (an unincorporated association) - members, nominated members, trustees? 1st adjudication against an individual : 2nd against group of members : Held : Adjudicator had jurisdiction to determine who the relevant persons were. 2nd adjudication corrected matters from the first so only the 2nd enforced. No issue of double jeopardy. TCC. 27th January 2006. |
| by His Honour Judge Peter Coulson QC. Crown Copyright |
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| Dispute : meaning of : Had a dispute as to indirect costs, which had not been quantifies crystallised? Court upheld adjudicator's decision that there was no dispute at that point in time. The claim was subsequently withdrawn - was there a right to do so? Court held that there is nothing in the HGCRA to prevent a party withdrawing a claim from adjudication and it would be wrong to prevent a party resiling from an unpursuable claim. TCC. 13th June 2006 |
| by His Honour Mr Justice Jackson. Crown Copyright |
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| Failure to adjudicate : Costs. Both parties chose litigation over adjudication. In the event the result was a "No Score Draw". Each party to bear its own costs. No adverse consequence for spurning adjudication to be visited on either party. TCC. 17th July 2006 |
| by His Honour Judge Thornton. Crown Copyright |
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| Application to appeal Jackson J's decision on Issue 4, the construction of a supplemental agreement, granted. Trial to follow. CA. 20th December 2006. |
| by May LJ. Smith LJ. Crown Copyright |
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| Repudiatory Breach : Non-payment of a certified sum for bona-fide reasons will not automatically translate into a repudiatory breach simply because an adjudicator subsequently finds monies due under the certificate. TCC. 6th June 2006. |
| by His Honour Mr Justice Jackson : Crown Copyright |
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| Bias : Due Process : M relied upon an impacted as planned analysis to extablish three EOTs. WIQ relied on an as-built windows analysis in defence. Whilst adopting a cautionary approach to the ISP analysis the adjudicator awared ?1.1M re EOTs. Enforcement resisted. Claimed Balfour Beatty v Lambeth bias in that adjudicator made his own analysis - without putting it to the parties. Held : No - adjudicator ruled on the evidence. Enforcement ordered. Ramsay J. TCC. 8th June 2006 |
| by Mr Justice Ramsay : Crown Copyright. |
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| Application to set aside a default enforcement judgement of a default adjudication decision. Assertion that notice of adjudication and subsequent enforcement action sent to wrong address. In both situations adjudicator and solicitors sent notices to two addresses in compliance with CPR rules. Enforcement judgement upheld. Rhode Construction v Markhan-David considered. TCC. 8th December 2006 |
| by His Honour Judge Coulson : Crown Copyright |
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| Application for summary enforcement refused. The adjudication decision noted that whilst only a limited number of matters were addressed by the decision all other matters had been considered. The court held that the adjudicator had failed to deal with all aspects of the defence. The catch all phrase "all other matters had been considered" was insufficient to establish that this was in fact the case. 21st April 2006.TCC. Salford. |
| by Paul Newman Commentary : Judgment of His Honour Judge Raynor. |
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| Unsuccessful appeal against the decision of Jackson J refusing summary enforcement of adjudication where adjudicator had declined to consider a dispute regarding an application for an EOT which was brought on different grounds to a prior application : adjudicator erred in assuming double jeopardy. This was a distinct and separate dispute - not a replica of the first dispute. 20th December 2006 |
| by May LJ; Dyson LJ; Smith LJ. Crown Copyright |
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| Double jeopardy : Contractor unsuccessfully submitted a dispute regarding EOT to adjudication because the certifying architect under a JCT 1998 had failed to deal with it. The Claimant employer successfully submitted a LAD dispute to adjudication. The defence of entitlement to EOT's being rejected as already settled at a prior adjudication. Enforcement was refused because the grounds for EOT were new and distinct. Adjudicator should have considered them. TCC. 2nd February 2006. |
| by His Honour Mr Justice Jackson : Crown Copyright |
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Natural Justice : Expert knowledge : Enforcement action. Issue : whether losses due to unexpected ground conditions. The claimant (here the defendant) failed to prove normal conditions. Adjudicator's conclusion as to the cause of the loss (based on the evidence) differed from those of the parties. Held : adjudicator entitled to conclude ground conditions unexpected. No breach of rules of natural justice. Both decisions enforced. TCC. Salford District Registry. 27th January 2006
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| by His Honour Judge Gilliland. Crown Copyright |
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| Written Contract : Adjudication decision non-enforceable - no written contract for the purposes of s107 HGCRA - at least on the terms argued by the applicant for enforcement at the adjudication. Applicant could not change the pleadings in respect of what contract applied at enforcement. There was a dispute that falls for determination - presumably at an alternative forum. RJT v D.M.Engineering considered. TCC. 31st July 2006. |
| by His Honour Judge Havery : Crown Copyright |
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| Interim costs hearing. Procedure for assessment of costs thrown away. Property developer cancelled a construction contract dismissing the contractor and the architect. The claimant was ordered by an adjudicator to pay outstanding fees to the architect and sought to recover his losses by commencing a professional negligence action to recover ?0.5M. Costs (the subject of this hearing) were thrown away by delays caused because the claimant?s pleadings were not in good order. TCC. 9th February 2006. |
| by His Honour Judge Peter Coulson QC. Crown Copyright |
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| Default Judgment : Should a default adjudication decision be enforced? Notice, referral and appointment not communicated to defendant. In the circumstances there was a real possibility of the claim being succeffully defended. Decision set aside and case set down for trial. TCC. 20th March 2006 |
| by Mr Justice Jackson. Crown Copyright |
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| Jurisdiction : Legal Personality : Identify of contractor changed during project - identify of subsidiary etc confused - resulting in an arguable case that adjudicator had no jurisdiction (though identify not argued in adjudication). Meaning of Dispute - existence of dispute considered : Final Account Dispute - Cl 30 JCT 1998 with contractors design. There was clearly a dispute. TCC. 15th December 2006 |
| by His Honour Judge Wilcox : Crown Copyright |
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| Notice of arbitration : Contract provided that arbitration notice required within 3 months or adjudication decision became final. At first instance Lord Clarke held notice to be adequate. On appeal, validity of notice upheld on different grounds, namely that the terms were too imprecise to require strict adherence. First Division, Inner House, Court of Session. 22nd February 2006. |
| by Lord President; Lady Cosgrove; Sir David Edward, Q.C. Crown Copyright |
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| Natural Justice : Failure to consider defence : Two related claims in respect of a Management Contract and Managment Profit Contract - in relation to the same works. Defence of failure to mitigate fully considered in first adjudication, but not expanded on in second adjudication. Court held the matter was fully considered. Summary enforcement ordered. 7th November 2006 |
| by His Honour Judge David Wilcox : Crown Copyright |
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| Witholding notice : Validity. Following adjudication of a final account TVC submitted application for interim payment. BSL issued a withholding notice, challenged here on basis that it sought a set off against adjudication decision. Held : Final account does not give rise to a right to immediate payment. Outstanding snagging meant that sums could continue to be withheld. TCC. Birmingham. 14th November 2006 |
| by Her Honour Judge Francis Kirkham. Crown Copyright |
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| Written Contract for the purposes of s107 HGCRA. Whether assignee of a construction contract a party to a construction contract. Whether notice to assignor necessary to refer case to adjudication. Whether assignor a party to the dispute. Assignor in liquidation. TCC. Birmingham. 25th April 2006 |
| by His Honour Judge McCahill QC : Crown Copyright |
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| Adjudication decision re interim certificate at practical completion - included a deduction for LADs. Defendant issued a Final Certificate then declared that taking the adjudicator's award on LAD's into account a sum was due to the defendant. Claimant sought enforcement. Court held adjudication award not a hostage to the fortune of subsequent certificates. Full amount due. Defendant had right to pursue future claims later. TCC. 20th March 2006 |
| by His Honour Judge Ramsey. Crown Copyright |
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