| Date | 7 February 2001 |
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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 since February 2000. |
printIn Contract Journal on 29 March last year, I gave a round-up of the legal cases which had been decided up to that point concerning adjudication. It is time to bring that summary up to date. F W Cook Ltd -v- Shimizu (UK) Ltd 4 February 2000 This case confirmed that parties to adjudication should carefully articulate the redress sought in the notice to adjudicate and subsequent submissions. Though Cook had won its case in respect of the individual items claimed, this did not result in a full payment for these items, as the adjudicator had not been asked to deal with overall payments. Workplace Technologies plc -v- E Squared Ltd 16 February 2000 Confirmed that the court will not grant an injunction to prevent adjudication from continuing and thus the adjudicator's jurisdiction can normally only be challenged by way of defence to enforcement proceedings. Bloor Construction (UK) Ltd -v- Bowman & Kirkland (London) Ltd 5 April 2000 In Bloor, it was questioned whether an adjudicator can alter his decision to correct clerical mistakes or errors arising from an accidental slip or omission. The court confirmed that the adjudicator may correct an error in his decision, providing this was only to give effect to his original intentions, and not to re-think the decision. Bridgeway Construction Ltd -v- Tolent Construction Ltd 11 April 2000 Held that the courts will not upset a clear and unambiguous agreement between parties applying the Construction Act, where that agreement is not contrary to the clear intentions of the Construction Act. Thus an agreement that the referring party would meet both parties costs in the adjudication, win or lose, was binding. Herschel Engineering Ltd -v- Breen Property Ltd 14 April 2000 In this case, the defendant complained that it was unreasonable that he should be forced to defend proceedings in both litigation and adjudication concerning the same issues. The court held that there is nothing within the statutory provisions to prevent an adjudication from proceeding concurrently with any court proceedings in respect of the same disputed matter. John Mowlem & Co plc -v- Hydra-Tight Ltd 6 June 2000 This case concerned the ICE "matter of dissatisfaction" procedure contained within the New Engineering Contract. The Judge gave the impression that the requirement to obtain an engineer's decision before a matter may be referred to adjudication may not be compliant with the Act. Nottingham Community Housing Association Ltd -v- Powerminster Ltd 30 June 2000 It seems that the definition of 'construction operations' within Section 105 of the Act will be given a liberal interpretation by the courts. In this case the maintenance and repair of heating installations and the like were caught by the Act. KNS Industrial Services (Birmingham) Ltd -v- Sindall Ltd 17 July 2000 Confirmed that an adjudicator's decision cannot be dissected to enforce those parts which are decided within jurisdiction, and disallow other parts. Shepherd Construction Ltd -v- Mecright 27 July 2000 A settlement agreement will normally be binding upon the parties in relation to all the disputes to which it refers until such time as the Court determines otherwise. Until then the dispute may not be resolved by adjudication, since such an agreement is not a construction contract within the meaning of the Act. Bouygues (UK) Ltd -v- Dahl Jensen (UK) Ltd 31 July 2000 The Court of Appeal confirmed that the courts will enforce adjudicator's decisions even where they are plainly based upon an error. The decision also suggested that, where the successful party is insolvent, the insolvency rules will allow the other party to raise a set-off in respect of liabilities which at the time of the insolvency order may be due but not yet payable. ABB Power Construction Ltd -v- Norwest Holst Engineering 1 August 2000 Further clarified Section 105(2) of the Act that the Court will generally define exempt construction operations by reference to the nature of the project as a whole, and not with regard to the individual construction activities. Discain Project Services Ltd -v- Opecprime Development Ltd 9 August 2000 Discain confirmed that an adjudicator's decision will be unenforceable against an allegation that the adjudicator has failed to follow the rules of natural justice. Adjudicators must allow no suggestion of bias and be particularly careful to ensure the parties are given adequate opportunity to respond to the representations made by their opponents. Whiteways Contractors (Sussex) Ltd -v- Impressa Castelli Construction UK 9 August 2000 Whiteways is a difficult case to interpret. Its guidance appears to be that the absence of a S111 withholding notice will not prevent an adjudicator from making an abatement from sums claimed to reflect the true value of work carried out. The case gives no guidance on the absence of a payment notice under S110 of the Act. Elanay Contracts Ltd -v- The Vestry 30 August 2000 In Elanay, various arguments including "issue estoppel" and the application of the European Convention on Human Rights were rejected as grounds for refusing enforcement of an adjudicator's decision. Woods Hardwick Ltd -v- Chiltern Air Conditioning 2 October 2000 This case gave guidance to adjudicators as to certain procedural requirements, to ensure impartiality and the observance of the rules of natural justice. The test is onerous. Any objectively held perception of impartiality by one party may be sufficient to prevent enforcement of an adjudicator's decision.
CJ-0105
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