| Date | 29 March 2000 |
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| Judgment | Various. |
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| The Issue | Legal interpretation of the Housing Grants, Construction and Regeneration Act. |
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| Implication |
A round up of legal cases dealing with the subject of adjudication. |
printThere has been a flood of judgments concerning adjudication in the past year or so, and I thought it might be useful to give a summary of the key decisions and their implications. Macob Civil Engineering-v-Morrison Construction 12 February 1999 We were given an answer in February 1999 to the most important question concerning adjudication. An adjudicator's decision was taken to the court and despite every complaint and excuse by the losing party, the court enforced the decision. Judge Dyson had set the tone for adjudication to become the new forum for resolving construction disputes. Rentokil Ailsa Environmental -v-Eastend Civil Engineering 12 March 1999 In Rentokil it became clear that the courts would look unfavourably upon cross-claims as justification for non-payment of an adjudicator's decision. In Scotland the use of arrestments, a means of freezing property belonging to a debtor, would not be permitted to thwart the decision of an adjudicator. Outwing Construction -v-H Randell & Son 15 March 1999 Outwing showed that the courts would accelerate the normal time scales for enforcement of adjudicator's decisions and award the successful party its costs in relation to the enforcement. A & D Maintenance and Construction-v-Pagehurst Construction Services 23 June 1999 With the decision in A & D Maintenance it was now becoming clear that perhaps the only circumstances where adjudication decisions would not be enforced by the courts would be where the adjudicator's jurisdiction could be successfully challenged. Allied London and Scottish Properties v-Riverbrae Construction 12 July 1999 This case held that adjudicators would normally be required to order immediate payment of sums found held to be due. Payment into joint accounts or making compliance with the adjudicator's decision conditional upon resolution of matters outside the adjudicator's jurisdiction would generally not be appropriate. Project Consultancy Group -v-The Trustees of The Gray Trust 16 July 1999 Project Consultancy clarified that a failure to establish on clear evidence the existence of a contract within the meaning of the Construction Act, would deny a party the means of conferring the necessary jurisdiction upon an adjudicator. John Cothliffe -v- Allen Build (North West) 29 July 1999 In Cothliffe the judge held that an adjudicator had the power, even in the absence of express agreement between the parties, to award costs in favour of the successful party. This decision was revised in the later case of Northern Developments. Palmers -v- ABB Power Construction 6 August 1999 Confirmed that whilst the adjudicator has no binding power to resolve a question over his own jurisdiction, he must take appropriate practical steps to investigate the matter of his jurisdiction in the first instance, and proceed or refuse to proceed with the adjudication accordingly. The case also confirmed that it might be possible for a main contract to be excluded from the statutory adjudication mechanisms as a consequence of the nature of the main contract works, whilst a subcontract on the same project could be nevertheless caught by the provisions. Lathom Construction -v- Brian Cross and Anne Cross 29 October 1999 Decided that a settlement agreement will normally fall beyond the ambit of the Construction Act, and accordingly an adjudicator will not have jurisdiction to deal with disputes which flow from the agreement. Bouygues (UK) -v- Dahl-Jensen 17 November 1999 Bouygues may be regarded as a high water mark in defining the role of adjudicator. The case confirmed that the court would enforce an adjudicator's decision even where it was plainly wrong. Sherwood & Casson -v- Mackenzie 30 November 1999 Dealt with the common issue of consecutive adjudications under the same construction contract, and confirmed that whilst an adjudicator could not re-adjudicate matters decided in an earlier adjudication, the determination of a final account would generally be regarded as a different dispute to the determination of the last interim payment. Fastrack Contractors -v- Morrison Construction 4 January 2000 Questioned ambush tactics and confirmed that a pre-existing dispute would be necessary to confer jurisdiction upon an adjudicator. Generally with this type of question, it is a matter of degree and detail as to whether the referral notice raises new issues which will be incapable of being adjudicated upon. VHE Construction -v- RBSTB Trust Company 13 January 2000 In VHE the matter of counter-claims was once again examined. It was held that even in circumstances where payment in respect of a decision was not yet payable, a counter-claim or set off raised after the date of the referral would not prevent enforcement of the adjudicator's decision in full. Northern Developments (Cumbria)-v- J & J Nichol 24 January 2000 Northern Developments further clarified the position concerning set off, and held that a set-off cannot be within the adjudicator's jurisdiction unless it is raised in a notice of intention to withhold payment. The case also clarified, contrary to the earlier guidance in Cothliffe, that an adjudicator has no implied powers to award parties' costs except where the parties have expressly agreed to that effect. Grovedeck -v- Capital Demolition 24 February 2000 Confirmed that disputes arising under oral agreements may not be the subject of adjudication proceedings unless the oral contract has been alleged and not denied in earlier proceedings.
CJ-0012
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