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| Application for summary decree in respect of outstanding stage payments : whether or not valid withholding notices had been issued was a triable issue, so summary decree refused. Outer House Court of Session. 17th April 2008 |
| by Lord McEwan, Crown Copyright |
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| Jurisdiction : stay on grounds of financial state of claimant. Mechanical Services contract on Intermediate terms. Whether three succeeding arrangments new contract (or in one case a mere letter of intent) or whether vairations of the original contract. Held : Whilst the adjudicator had no jurisdiction - express or imlied to rule on jurisdiction - the finding by him that the subsequent arrangements were variations and thus part of the contract which gave him jurisdiction were findings of mixed fact and law that, whether right or wrong could not be challenged on enforcement. His Honour also agreed that they were variations. Enforcement accordingly. TCC. 10th december 2008 |
| by Mr Justice Akenhead. Crown Copyright |
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| Written contract for purposes of HGCRA : Failed application for summary enforcement : No jurisdiction over dispute, or over award of interest. TCC. 17th November 2008. |
| by Mr Justice Akenhead. Crown Copyright |
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| Set off : Stay pending 2nd decision : payment into court. The defendant resists the application for enforcement of an adjudicators decision on the ground that it is entitled to set off LADs against the sum awarded. Alternatively, the defendant seeks a stay of execution, or an order that the money be paid into court and not distributed until the outcome of a second adjudication. Birmingham District Registry, TCC. 29th April 2008. |
| by HHJ Frances Kirkham : Crown Copyright |
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| Summary enforcement : stay to mediation - held : agreement to agree to mediation : Stay refused. Whether non compliance with 24PD.2 fatal to application for enforcement - held : technical not substantive failure - permission to amend granted. Whether a reasoned decision provided - Held YES. Whether a secondary defence considered : Held : YES. Whether there is a right to reply to response to defence : HEld : NO. Whether including the adjudication award in a subsequent valuation a waiver of right to enfoce : Held : No. Whether in the absence of a withholding notice payment is due for a certified claim : Held : YES. Whether a counterclaim for LADs could be set off against award : Held : No. Whether a claim for LADs was enforceable by summary judgment : Held : No. but a triable issue to be settled at a later date. 4th December 2008. |
| by Mr Justice Coulson. Crown Copyright |
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| Adjudication 1 & 2 dealt with the question whether or not practical completion had been achieved on a documentary and factual basis and if not liability for LADs. In adjudication 3 the contractor sought to establish that the consequence of partial possession was that practical completion had been achieved and thus the previously awarded LADs were not due. Held in enforcement proceedings regarding adjudication No3 that the adjudicator had no jurisdiction since it was essentially the same dispute as previously determined in adjudication No1. TCC. 17th September 2008 |
| by Mr Justice Coulson. Crown Copyright |
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| Double jeopardy : 1st adjudication concerned an EOT, return of LADs and a claim for Loss and Expense arising out of the EOT. Points 1 and 2 successful : Issue here was whether adjudicator dealt with the Loss and Expense Claim and if not whether a 2nd adjudicator could deal with it. Held : 1st adjudicator held nothing due - it was an extravegant and exagerrated claim. The adjudicator had no right to indicate that the matter might be re-adjudicated. Any challenge had to be by arbitration or litigation. Accordingly 2nd adjudicator had no jurisdiction. TCC. Birmingham District Registry. 25th September 2008 |
| by HHJ Frances Kirkham : Crown copyright |
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| S68(2)(g) AA 1996 – appeal out of time. s68(2)(g) AA 1996 application to serve appeal 66 days late against an arbitration award (No1) that overturned an adjudication decision. Assertion that documents disclosed in a subsequent arbitration (No2) would have resulted in a different result in No1. Held : Disclosure of the documents had not be ordered - and unlikely to change anything. Perjury allegations not sustainable. No good reason for the delay. TCC. 23rd April 2008 |
| by Mr. Justice Akenhead : Crown Copyright |
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| Summary enforcement application : Claimant relied upon s15 Supply of Goods & Services Act 1982 to claim a reasonable charge for professional construction services : adjudicator found for claimant, but court held that in the absence of any written agreement as to scope of works or charges, arguably the adjudicator had no jurisdiction under s107 HGCRA. Accordingly leave granted to defend. RJT Consulting Engineers Ltd v DM Engineering [2002] applied. TCC. 14th April 2008. |
| by CHS : Summary : Judgment of HHJ David Wilcox. |
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| Jurisdiction : Natural justice. Challege to enforceability of adjudication decision in respect of extension of time : Which period of time should apply to th EOT and on what basis should damages be calculated. Defence resulted in adjudicator determining a different period to that initially claimed – this however did not deprive the adjudicator of jurisdiction and since it was a result of assertions by the defence was not a breach of the rules of natural justice. TCC. 27th February 2008 |
| by Mr. Justice Akenhead. Crown Copyright |
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| Late submission of defence : Does DOM/2 Clause 38A,5.1.2. (the respondent) “MAY ... send to the Adjudicator within 7 days of the date of a referral ... a written statement of the contentions on which he relies and any material he wishes the Adjudicator to consider”- establish a final date for submission of defence? Held : No. Furthermore, the adjudicator SHALL under 5.15 “… set his own procedure and at his absolute discretion may, take the initiative in ascertaining the facts and the law as he considers necessary.” The adjudicator had the power to extend time and breached the rules of natural justice by not doing so. Decision not enforceable. TCC. 15th August 2008 |
| by Mr Justice Akenhead : Crown Copyright |
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| Electronic decision - email - Held : Valid decision : decision issued subject to a request for additional time to further consider granounds for revaluation downwards of a deduction from the award for LADs. Held : award final - though if both parties gave additional time & further submissions a different outcome might be reached. Whichever way defendant not prejudiced - he got the benefit of the doubt in all this. Adequacy of reasons : Whilst telegraphic award showed issues addresses and clear decision. Amendments to contract did not - could not - remove adjudicators inquisitorial role and replace it with an adversarial role - and procedures equivalent to a court. Outer House Court of Session. 19th August 2008. |
| by Lord Menzies. Crown Copyright |
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Cubitt seeks declaratory relief that its terms and conditions were incorporated into the sub-contract between the parties and injunctions that Richardson should be restrained from continuing with an arbitration and that adjudication should proceed before any further proceedings. Application refused.
Richardson seeks a declaration that the DOM/1 Sub-Contract Conditions were incorporated into the sub-contract and that Cubitt\'s application that the arbitration should be stayed pending adjudication should itself be stayed under S9 Arbitration Act 1996. Application granted. TCC. 9th May 2008.
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| by Mr Justice Akenhead. CrownCopyright |
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Failed application for reduction of adjudicator\'s decision put out By Order before pronouncing any final interlocutor. Outer House Court of Session. 16th December 2008.
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| by Lord Glennie, Crown Copyright |
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| Residence exception to HGCRA. Action to enforce adjudication decision: No defence available. Did the residential exception apply to a construction contract with a company where a director of the company occupied the premises? Initial reference in director’s name abandoned and fresh reference made in the name of company. Held : No. Further more, drainage and ground works for landscaping are construction works under the HGCRA. TCC. 13th March 2008 |
| by Mr Justice Coulson. Crown Copyright |
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| Strike out enforcement action. Application to strike out action to enforce an adjudication decision on the grounds that the contract stated that any litigation of disputes should be delayed till after final completion. On the facts that appliction failed. Manchester District Registry, TCC, 27th March 2008 |
| by His Honour Judge Stephen Davies. Crown Copyright |
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| Whether the adjudicator was given jurisdiction to decide that he had jurisdiction and if not whether he did have jurisdiction. TCC. 19th December 2008 |
| by Mr Justice Akenhead. Crown Copyright |
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| Written contract : Non-HGCRA domestic housebuild contract - scottish Form : Whether a contract : who contracted with who : whether adjudicator in breach of natural justice : whether non-HGCRA adjudication akin to arbitration and subject to different rules of judicial review to HCGRA adjudication : held : treatment the same. Outerhouse, Court of Session. 15th July 2008. |
| by Lord Menzies. Crown Copyright. |
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| Application for summary judgement enforcing adjudication decision. Defence conceeded, but questioned whether adjudicator should have had a site visit. Held : Since dispute determined on basis of defects to design faults not defective work, site visit not needed (though adjudicator is sole determinator of the process inanycase). Application for time to pay pursuant to CPR Part 40.11 declined but permission to apply for extension before 14 days elapses if parties unable to broker a settlement - evidence of reasons for extension required. As to indemnity costs, usual where no defence - but defendant successfully raised issues regarding additional appearances caused by delays in serving documents - resultant costs deducted. 12 hours preparation time to serve two documents excessive and trimed. TCC. 11th December 2008. |
| by Mr Justice Akenhead. Crown Copyright |
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| Application by a judgment creditor for a third party debt order to enforce a judgment based on the enforcement of an adjudicators decision. TCC. 17th October 2008 |
| by Mr Justice Coulson. Crown Copyright |
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| Application for preliminary declarations in support of adjudication : whether sectional completion schedule void for uncrertainty : whether liquidated damages provisions(LADs) amounted to a penalty; validity of EOT\'s. TCC. 31st October 2008 |
| by Mr Justice Coulson. Crown Copyright |
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| De nouvo trial : contract interpretation - was the adjudicator (Non HGCRA - PPI stepped dispute process) correct in determining that a particular interpretation, whilst ostensibly correct, led to an absurdity and should not be applied? Held : It did not lead to an absurdity and should therefore be applied. TCC. 14th March 2008. |
| by Mr Justice Ramsey : Crown Copyright |
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| Whether nomination valid : Contract on JCT Intermediate Form of Building Contract (1998 Edition) standard form. Dispute as to validity of termination or alternatively repudiation by Camden. Makers considered a legally qualified adjudicator desirable and having ascertained that a specific lawyer on the Riba panel was available, suggested / requested his appointment. Riba acceded. Was there a duty to consult with Camden or apparent bias in the appointment. Held : No. Adjudication summarily enforced. TCC. 25th July 2008 |
| by Mr Justice Akenhead : Crown Copyright |
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| Appeal against costs in previous actions before Jackson J. CA. 6th February 2008 |
| by May LJ; Smith DBE LJ. Crown Copyright |
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| Application to amend. On going saga. TCC. 7th February 2008 |
| by Mr Justice Jackson. Crown Copyright |
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| Application to amend proceedings. TCC. 19th March 2008 |
| by Mr Justice Jackson. Crown Copyright |
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| Costs : Final element of the Wembly Stadium saga. TCC. 29th September 2008 |
| by Mr Justice Jackson : Crown Copyright |
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| Summary enforcement – stage payment ICE 5th.Application for summary enforcement of sum due under a certified stage payment under the ICE 5th ed standard form construction contract (groundworks), in the absence of withholding notice (in lieu of adjudication). Defendants applied for cist to arbitration : Held : No dispute to refer to arbitration. Sums due under the contract and the HGCRA s111. Outer House, Court of Session. 18th September 2008 |
| by Lord Glennie : Crown Copyright |
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| Withholding provisions HGCRA. JCT clause 24 : Certificate of non completion issued together with notice : Certificate subsequently withdrawn but no replacement notice served. Did the original notice continue to be valid? Yes – in the circumstances since nothing to the contrary in the contract terms. House of Lords. 20th February 2008 |
| by Lords Hope; Scott ; Walker ; Brown ; Neuberger : Crown Copyright |
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| Assignment of rights of suit under a construction contract between T&T Fabrications (A Firm) and T&T Fabrications Ltd : dispute as to whether all terms of contract in writing as per s107 HGCRA & thus whether adjudicator had jurisdiction. Enforcement refused. Long standing dispute - small sum involved - suggests County Court would have been the best way to proceed. TCC. 21st April 2008 |
| by Judge Wilcox : Crown Copyright. |
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| Payment by 3rd party. Judgment debt – summary enforcement of adjudicator’s decision. Is the debt discharge if paid by a third party - here a member of the debtor\'s family? Held : Yes. TCC. 15th September 2008 |
| by Mr Justice Coulson: Crown Copyright |
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Fire : Insurance : recovery of adjudication award. Successful appeal : sums paid out pursuant to an adjudication recoverable under terms of insurance policy. CA. 2nd April 2008
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| by MR, Rix LJ; Keene LJ. Crown Copyright |
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| Enforcement proceedings : Issues :- whether or not a) there was a sufficient dispute (if any) to be referred to adjudication; b) whether any claim giving rise to a possible dispute was withdrawn ; c) a new claim was raised in the adjudication outwith the adjudicators jurisdiction ; d) there has been a waiver of the right to challenge jurisdiction ; e) a claim for delay & disruption was so nebulous & ill-defined as to be unable to give rise to a dispute. Decision enforced. 15th August 2008 |
| by Mr Justice Akenhead. Crown Copyright |
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| Existence of building contract : Declaration : Domestic contract. Does the TCC have jurisdiction to decide a dispute as to the existence and/or terms of a contract, in circumstances where it is said that the court\'s decision will determine whether or not the claimant has the right to adjudicate, but where there is presently no adjudication (or even reference to adjudication), and there has instead been an almost completed pre-action protocol process? Answer : YES. Issue to proceed to trial. TCC. 16th September 2008 |
| by Mr Justice Coulson. Crown Copyright |
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| Post adjudication application for a declaration - dispute about whether sale and fix of timber by sample complied with contract terms - and whether supplier in breach when timber faded in colour. Court held : not suitable to determine issue of breach under a Part 7 application : Part 8 proceedings needed to settle matter. Limited declarations provided to facilitate future proceedings. 11th December 2008 |
| by Mr Justice Coulson. Crown Copyright |
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| Determination - whether all payments suspended on determination under JCT Minor Works Form, 1998 edition. Adjudicator found in adjudication No1 1) sum due prior to determination and 2) in adjudication No2 that clause 7.2.3. not therefore applicable : Decision enforceable under clause D7 1-3. Whether right or wrong, the court thought they were correct decisions regarding that form of contract, the decision was enforceable. 9th December 2008 |
| by Mr Justice Coulson. Crown Copyright |
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