Adjudication

1
Adjudication What the Bill Should
ConsiderAnthony Hussey
2
Is Adjudication to be Binding Pending Arbitration?

• Bill says no.
• RIA suggests two pillared approach.
• Cost of bond effect on smaller contractors.
• Possible tiered approach?

3
Should Adjudication Apply to Contracts with Value
of Less Than 200,000?

• Bill says no.
• RIA says yes.

4
Should Adjudication Apply to Suppliers?

• Bill says no.
• RIA in principle seems to favour adjudication
  applying in respect of products manufactured
  specifically for the project but sees the wording
  of such a provision as being problematic.

5
Should Dispute Be Defined so as to Avoid Ambush?

• UK experience / legislation says no.
• Edmund Nutall v RG Carter 2002 EWHC 400 Open
  exchange of views.
• Constitutional Implications?

6
Should the Adjudicator be Entitled to Correct
Obvious Errors?

• Bill allows for correcting clerical or
  typographical errors only (Section 6(13)).
• Bouygues (UK) Limited v Dahl-Jensen (UK) Limited
  2000 BLR 49 and Geoffrey Osborne Limited v
  Atkins Real Limited 2009 EWHC 2425
• Constitutional Implications?

7
Should the Bill Outlaw Tolent Clauses?

• No such provision in the Bill.
• Section 21 of the Arbitration Act 2010.
• Current provision in the Public Works Contracts.
• Such provisions are outlawed under the Local
  Democracy Economic Development and Construction
  Act 2009.

8
Should the Act Provide for Enforcement of
Adjudicators Decision Through Fast Track Court
Process?

• Not addressed in the Bill.
• Not addressed in the UK statutory provisions.
• Recent article by James Bowling in TechBar Review
  (Winter 2011) suggests that issue is by no means
  clear (Macob v Morrisson 1999 BLR 93).
  Enforcement may have to be referred to an
  Arbitrator.

9
Should the Adjudicator be Entitled to Award
Interest?

• Not addressed in the Bill.
• Entitlement in UK is confined to contractual
  interest. Carillion Construction Limited v
  Davenport Royal Dockyard Limited 2005 EWHC 778.
• Court of Appeal recognised that this was not
  commercially sensible.

10
Should the Adjudicator be Obliged to Give Reasons
for his Decision?

• Not addressed in current Bill previous draft of
  the Bill required that a party seeking reasons
  pay the additional cost involved in providing the
  reasons.
• In UK reasons are to be provided if either party
  requires them.
• Perhaps the reasons could be furnished outside
  the twenty-eight day period?

11
Should the Bill (Codes of Practice) Allow
Confidential Information be Given to the
Adjudicator?

• Regulation No 18 of the Scheme for Construction
  Contracts (England and Wales) Regulations 1998
  does permit the adjudicator to receive
  information in confidence which he will not
  disclose except to the extent that it is
  necessary for the purposes of, or in connection
  with the adjudication.
• Not addressed by the Bill.
• The rules of natural justice apply to
  adjudication this would suggest that the
  adjudicator should not be permitted to receive
  confidential information.