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Issues to consider before commencing an adjudication—checklist

Issues to consider before commencing an adjudication—checklist This Checklist highlights issues that commonly require consideration prior to a party referring a dispute to adjudication. It includes links through to in-depth guidance on the various issues and notes the relevant provisions of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) where applicable. Legal matters It is necessary to check that there is a legal right to refer a dispute to adjudication, including whether the dispute has crystallised and comes within the scope of permitted disputes. • Entitlement to refer a dispute to adjudication The referring party must have a legal right to refer a dispute to adjudication. This can be either a statutory or a contractual right, or an ad hoc agreement between the parties to adjudicate. Therefore, consider: ◦ is there a statutory right—does the parties’ contract fall within the definition of ‘construction contract’ under HGCRA 1996, s 104 and is not otherwise excluded from its ambit? See Practice Note: What is a construction contract under the HGCRA...

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Dispute resolution under the UK-EU Trade Cooperation Agreement

Dispute resolution under the UK-EU Trade Cooperation Agreement This Practice Note gives practical guidance on the dispute settlement mechanism available to the UK and the EU in terms of the UK-EU TCA. The focus is on dispute settlement as it relates to trade. It covers the scope of trade dispute settlement, the mandatory process of consultation and eventual arbitration, as well as ensuring compliance with the arbitration ruling. Introduction After the United Kingdom’s (UK) decision (Brexit) to leave the European Union (EU) the parties agreed to a Trade and Cooperation Agreement (UK-EU TCA) in December 2020. The UK-EU TCA entered into force on 1 January 2021. For practical guidance on the trade in goods, services and rules of origin under the UK-EC TCA, kindly see Practice Note Trade in goods under the UK-EU Trade and Cooperation Agreement on goods, Practice Note Trade in services under the UK-EU TCA—an overview on services and Practice Note Rules of Origin of the UK-EU Trade and Cooperation Agreement on Rules of Origin. The...

The Reply and further submissions in an adjudication

The Reply and further submissions in an adjudication This Practice Note considers: • the entitlement to submit further submissions in an adjudication beyond the Response (typically known as the Reply > Rejoinder > Surrejoinder etc) • the contents and form of such submissions, and practical considerations when drafting them For information on other adjudication documents, see Practice Notes: • The Notice of Adjudication • Adjudication—the Referral Notice • Adjudication—the Response Entitlement to make further submissions after the Response There is no automatic right for a party to make submissions after the Response, and it is not a breach of natural justice for the adjudicator not to permit such submissions (Barry M Cosmetics v Merit Holdings, AMEC Group v Thames Water). See News Analysis: Natural justice does not require adjudicator to permit a Rejoinder (Barry M Cosmetics v Merit). Nor it is normally a breach of natural justice for an adjudicator to set a timetable that does not allow for a Rejoinder (Balfour Beatty v Modus...

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Letter challenging jurisdiction of adjudicator

Letter challenging jurisdiction of adjudicator [Address/headed paper of responding party] [Date] [Address of adjudicator] Dear [insert name of adjudicator] In the matter of an adjudication between [referring party] v [responding party] Lack of jurisdiction as an adjudicator We have received: 1 The Notice of Adjudication dated [date] 2 [The Referral Notice dated [date] served on [date] by [referring party]] 3 Your letter of [date] purporting to accept the appointment as adjudicator. We respectfully consider that you do not have jurisdiction to act as an adjudicator in this matter, or to allow an adjudication to begin or to continue. General reservation of rights We reserve our right to raise any objections to

Advice to clients—what is adjudication?

Advice to clients—what is adjudication? What is adjudication? You have asked us to provide you with a brief description of what adjudication is and how the adjudication process typically runs, in light of [[your proposal to enter into a construction contract with] [insert name of the counterparty] OR [in anticipation of adjudication proceedings between] you and [insert name of the counterparty]]. Adjudication is a procedure designed to enable parties to resolve disputes relatively quickly and inexpensively. Under the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996), parties to construction contracts have the right to commence adjudication at any time. The parties refer their dispute to the adjudicator, who is an impartial decision-maker. The adjudicator is usually a construction industry professional (eg a quantity surveyor or engineer), or a lawyer with construction experience. They will consider arguments from both parties, and may also use their own initiative and experience, before making a decision on how the dispute should be resolved. The party that refers its claim to adjudication is...

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Where a sub-contractor has a number of unpaid invoices, can it commence a single adjudication in respect of all of them or would this constitute multiple disputes?

Where a sub-contractor has a number of unpaid invoices, can it commence a single adjudication in respect of all of them or would this constitute multiple disputes? This Q&A assumes that there is a dispute as to valuation of works carried out under a single unified construction contract between a contractor (C) and its sub-contractor (S) which is subject to the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) but does not include bespoke provisions as to referral to adjudication, and thus, Part 1 of the Scheme for Construction Contracts (the Scheme), SI 1998/649 applies. A party to a construction contract has a right to refer ‘a dispute arising under the contract’ to adjudication at any time under HGCRA 1996, s 108(1). It is very important for a party considering referring a matter to adjudication to consider closely whether an adjudicator will have jurisdiction to resolve the relevant factual dispute (or disputes) within a single adjudication, or whether several adjudications are necessary. See Practice Note:...

Is it possible for a referring party to submit arguments and documents in its adjudication reply which were not included in its referral?

Is it possible for a referring party to submit arguments and documents in its adjudication reply which were not included in its referral? Every dispute referred to an adjudicator is defined by reference to the notice of adjudication—a referring party is not entitled to increase the scope of the dispute via arguments and documents in its reply without agreement between the parties and the adjudicator. See, for example, KNS Industrial Services (Birmingham) Ltd v Sindall Ltd and Mecright v. TA Morris Developments Limited 26th June 2001 (not reported by UUÂãÁÄÖ±²¥Â®). However, a referring party can respond in its reply to matters raised in the response and provide documents relevant to this. Therefore, a key distinction to be made is whether the documents and arguments should have been raised at the outset, or whether they are just an understandable response to matters raised in the response. If the responding party is not given sufficient time to respond to the reply, there may also, depending on the...

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AI in Construction Disputes

Construction analysis: The significant development in the capabilities of artificial intelligence (AI) in recent years may have a significant impact on construction disputes. Paddy Mockler of Philip Lee consider various potential uses of AI, its benefits in construction disputes as well as the risk it may pose.

Construction weekly highlights—1 February 2024

This week's edition of Construction weekly highlights includes the publication of a report by the Competence Steering Group (CSG) introducing new standards and frameworks in the built environment industry, guidance from the Health and Safety Executive (HSE) on mandatory occurrence reporting in relation to higher-risk buildings, a case in which the TCC considered whether to strike out or stay court proceedings brought in breach of a mandatory adjudication clause (Lancashire Schools v Lendlease), a case in which the Court of Session rejected a natural justice challenge to an adjudicator’s decision (UK Grid Solutions v Scottish Hydro Electric) and publication of the Construction Leadership Council (CLC)’s response to the government’s construction policy framework, ahead of the Spring Budget 2024.