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A Pr actical Guide to
Construction
Adjudication
James Pickavance
Partner
Eversheds LLP
This edition first published 2016
© 2016 James Pickavance (apart from Chapter 19 © Tony Jones, Chapter 20 © Michael Humphreys, Chapter 22 ©
Peter Wood and Phillip Greenham, Chapter 23 Dermot McEvoy, Chapter 24 © Philip Koh, Chapter 25 © Tómas
Kennedy-Grant and Chapter 26 © Steven Cannon)
Registered Office
John Wiley & Sons Ltd, The Atrium, Southern Gate, Chichester, West Sussex, PO19 8SQ,
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Set in 10/12.5pt MinionPro by Aptara Inc., New Delhi, India
1 2016
Foreword
As Sir Rupert Jackson aptly commented, the mass of authorities on adjudication once
formed an impenetrable jungle.
Since an illuminating path through this jungle has been created by the well-known work
of my colleague, Mr Justice Coulson, it might be asked why there is a need for another
book on the subject. I think that the reader of this valuable work by James Pickavance
will soon find the answer.
Part 1 of this book, whilst fully supported by references to decided cases, is very much
directed towards the practitioner who has to advise his or her client on a construction
dispute and then conduct or defend proceedings brought by way of adjudication. To this
end it provides a clear route map together with helpful checklists at the conclusion of
each chapter. It is this different approach that I think readers will find so helpful. The
guidance in relation to insolvency and administration is particularly valuable.
As an added benefit, there is Part 2 – which deals with adjudication in other jurisdictions.
I know of no other similarly comprehensive guide and it is a fascinating and illuminating
source of reference.
The final bonus is a comprehensive index of over 550 reported cases on adjudication,
sorted into numerous subject headings that follow the subject headings in the main work.
This book does not set out to be a rival to existing works but to complement them. That
is a role that I have no doubt that readers will find that it amply fulfils.
v
Acknowledgements
I have sought the assistance of a number of individuals who have been kind enough to
comment on, or write, sections or chapters, discuss issues and assist with various jobs.
In particular, my father and my uncle, with formidable experience in the industry,
as adjudicators and as authors, have been of immeasurable assistance throughout this
project. James Bowling of 4 Pump Court, provided me with erudite comments on
insolvency, enforcement, set-off, adjudication strategy and losing the right to challenge
the adjudicator’s jurisdiction. Malcolm and Michael Harris of Harris Consulting, who
between them have taken part in over 400 adjudications either representing parties or
as adjudicators, have provided me with helpful insight that has been woven into sev-
eral chapters of the book. Phillip Burton’s technical prowess has allowed me to convert a
vast spreadsheet into Appendix 8 and 9. Michael Mendelblat of Herbert Smith Freehills,
kindly spent time reviewing part of an early edition and acted as a sounding board for
ideas as the book took shape. Michael Conroy Harris of Eversheds helped produce the
model forms. The Chartered Institute of Building, in particular Saleem Akram, offered
and continue to offer vociferous support for the idea and production of this book.
Finally, thanks go to the authors of the chapters on jurisdictions other than England &
Wales: Tony Jones of Brechin Tindal Oatts for Scotland, Michael Humphreys QC for
Northern Ireland, Peter Wood and Phillip Greenham of Minter Ellison for Australia,
Dermot McEvoy of Eversheds for Ireland, Philip TN Koh of Mah-Kamariyah & Philip
Koh for Malaysia, Tómas Kennedy-Grant QC for New Zealand and Steven Cannon of
Eversheds for Singapore. Although I have edited these chapters to a greater or lesser
extent, any credit must go entirely to the authors. I have been very fortunate indeed that
they agreed to contribute to this book.
James Pickavance
Hackney, London
September 2015
vii
Contents
Foreword v
Acknowledgements vii
1 Introduction 3
1.1 Overview 3
1.2 Background to statutory adjudication in the UK 4
1.3 Statutory adjudication regimes 5
1.4 Use of case law in this part 6
2 Adjudication in a nutshell 9
3 Deciding to adjudicate 13
3.1 Overview 13
3.2 Do I have a claim? 14
3.3 Is it worth it? 15
3.3.1 In a nutshell 15
3.3.2 Amount in dispute 15
3.3.3 Likely recovery 16
3.3.4 Professional fees 16
3.3.5 Resources 17
3.3.6 Relationships 17
3.4 Is adjudication the right forum? 18
3.4.1 In a nutshell 18
3.4.2 Advantages 18
3.4.3 Disadvantages 21
3.4.4 Statistics 24
3.5 Other forms of ‘rapid’ dispute resolution 24
3.5.1 In a nutshell 24
3.5.2 Early neutral evaluation 24
3.5.3 Expert determination 25
3.5.4 Mediation 26
3.5.5 Fast-track arbitration 27
3.5.6 Statutory demand or winding-up petition 29
ix
x Contents
4 Statutory adjudication 43
4.1 Overview 43
4.2 Old or new act 44
4.3 Existence and terms of a contract 44
4.3.1 In a nutshell 44
4.3.2 Contract formation and terms 45
4.3.3 Contract terminated 46
4.3.4 Void or voidable contract 46
4.3.5 Choice of terms 47
4.3.6 Incorporation of terms 47
4.4 Construction contract 49
4.4.1 In a nutshell 49
4.4.2 Carrying out, arranging, providing labour for construction
operations (Act s. 104(1)) 49
4.4.3 Consultants and advisers (Act s. 104(2)) 50
4.4.4 Contracts of employment (Act s. 104(3)) 50
4.4.5 Construction operations and other matters (Act s. 104(5)) 50
4.4.6 Application of the Act to contracts (Act s. 104(6)) 51
4.4.7 Ancillary agreements 52
4.5 Construction operations 55
4.5.1 In a nutshell 55
4.5.2 Definition of construction operations (Act s. 105(1)) 55
4.6 Excluded construction operations 58
4.6.1 In a nutshell 58
4.6.2 Approach to interpreting the exclusion provisions at section 105(2)
of the Act 59
Contents xi
6 Adjudication procedure 83
6.1 Overview 83
6.2 Scheme 84
6.2.1 In a nutshell 84
6.2.2 Does the Scheme apply and the failure to comply with section
108(1)–(4) (Act s. 108(5) and 114(4)) 84
6.2.3 Why choose the Scheme? 86
6.2.4 Scheme variants 87
6.3 Contractual procedures 88
6.3.1 In a nutshell 88
6.3.2 JCT 89
6.3.3 ICE/ICC 90
6.3.4 IChemE 91
6.3.5 NEC 92
xii Contents
6.3.6 TeCSA 93
6.3.7 CIC 94
6.3.8 CEDR Solve 95
6.3.9 Bespoke rules 96
6.4 Checklist: What adjudication procedure am I subject to? 96
1.1 Overview
[1.01] Construction adjudication can be defined as an interim dispute resolution procedure by
which the parties submit their dispute to an independent third party for a decision.
[1.02] In the UK, adjudication is available as a right for parties to a construction contract,
following the enactment of the Housing Grants Construction and Regeneration Act
1996 (the 1996 Act).1 Unless the timetable has been extended, within a comparatively
short period of time, parties will have a decision from an adjudicator, which save for
in limited circumstances the courts will enforce. The mandatory and expedited nature
of the process were the principal reasons why it was catapulted to the number-one
method of dispute resolution in the construction industry no more than a year after
the 1996 Act was passed and it is likely to retain its dominance for the foreseeable
future, particularly as amendments made to the 1996 Act in 2011 widen the scope of its
application.
[1.03] The short timescale means that once an adjudication has commenced, there is very little
time in which to learn or remind oneself about process and procedure. One needs to
know quickly what to do, when to do it and, just as importantly, check that the other
party and the adjudicator are following the right steps and, if not, what to do about it.
[1.04] This part of the book aims to facilitate this, by providing a straightforward narrative of
the process and procedure of adjudication. So far as it is possible to do, topics are pre-
sented in the order one would expect to encounter them. The procedure is interpreted
and explained by reference to case law and enveloped with guidance on how to approach
an issue, suggestions on what to do or not to do in certain situations, drafting tips and
checklists at key points. In essence, this part of the book is a practical guide on construc-
tion adjudication in the United Kingdom.
[1.05] There are three legal jurisdictions in the United Kingdom: England and Wales,
Scotland and Northern Ireland. England and Wales is by far the largest economy of
those jurisdictions and, no doubt at least partly for this reason, adjudication is more
3
Another random document with
no related content on Scribd:
Gastric Vertigo.—Trousseau certainly misled the profession as to the
frequency of this form, but he did little more than represent popular
medical views, and we may now feel sure that a good many so-
called gastric vertigoes are due to lithæmia or to troubles of ear or
eye. There are, I think, three ways in which the gastro-duodenal
organs are related to the production of vertigo. Acute gastric vertigo
arises in some persons inevitably whenever they eat certain articles,
and the limitations are odd enough. Thus, I know a gentleman who
cannot eat a mouthful of ice-cream without terrible vertigo, but
otherwise his digestion is perfect. I know another in whom oysters
are productive of vertigo within ten minutes; and a curious list might
be added, including, to my knowledge, milk, eggs, oysters, crabs,
etc. In these cases digestion is arrested and intense vertigo ensues,
and by and by there is emesis and gradual relief.
Single attacks are rare. It is apt to repeat itself, and finally to cause
all the distressing cerebral symptoms which characterize the worst
gastric vertigo, and at last to be capable of easy reproduction by
light, heat, over-exertion, and use of the mind or eyes, by emotion, or
by gastric disorder.
Even after the vertigo has ceased to exist the fear of loss of balance
remains, while perhaps for years the sense of confusion during
mental effort continues, and gives to the sufferer a feeling of what a
patient described to me as mental vertigo—some feeling of
confusion, lack of power to concentrate attention, loss of hold on
trains of thought, with now and then a sensation as if the contents of
the cranium moved up or down or swayed to and fro.
Vertigo from growths on the auditory nerve before it enters the inner
ear is rare in my experience. It is described as slow in its progress,
the deafness and tinnitus being at first slight, but increasing steadily,
while there is tendency to fall toward the side affected.7 In the cases
of disease attacking the seventh nerve within the cranium there is
usually so much involvement of other and important nerve-tissues as
makes the disorder of audition and equilibration comparatively
unimportant.
7 Burnett.
Then it is that even slight defects of the eye may cause vertigo,
which if usually slight and transient, coming and going as the eyes
are used or rested, is sometimes severe and incapacitating. I have
over and over seen vertigo with or without occipital pain or distress in
persons whose eyes were supposed to be sufficiently corrected with
glasses, but who found instant relief when a more exact correction
was made; and this is, I think, a matter which has not yet generally
received from oculists the attention it demands.
Vertigo in old age, if not due to the stomach or defective states of the
portal system, kidneys, or heart, is either caused by atheromatous
vessels or multiple minute aneurismal dilatations of vessels, or in
full-blooded people by some excess of blood or some quality of
blood which is readily changed by an alteration in the diet, of which I
shall presently speak. Whatever be its source, it is in the old a matter
of reasonable anxiety.
It is, however, worth recording here that I have more than once seen
enduring vertiginous status, with occasional grave fits of vertigo,
arise out of very prolonged sea-sickness. In the last example of this
sequence seen by me there was, after a year or more, some
deafness.
In these cases, after the eye has been corrected, the diet should be
regulated with care. In extreme cases it may become desirable to
limit it to milk, fruit, and vegetables where no obvious peculiarities
forbid such a regimen; and I have found it useful to insist also on
some food being used between meals.
I like, also, that these patients rest an hour supine after each meal,
and spend much time out of doors, disregarding their tendency to lie
down. Exercise ought to be taken systematically, and if the vertigo
still forbids it, massage is a good substitute. At first near use of the
eyes is to be avoided, and when the patient resumes their use he
should do this also by system, adding a minute each day until
attainment of the limit of easy use enjoins a pause at that amount of
reading for a time.
TREMOR.
Tremor is sometimes hereditary, and may exist from early life. I have
a patient in whom there is a trembling of the hands which has lasted
since childhood. This lady's mother and grandmother both had the
same form of tremor, and one of her own daughters also has it. In
this case the trembling is most marked when voluntary movements
are attempted, but it does not materially interfere with writing,
sewing, or any other act she wishes to accomplish. There is slight
tremor when the hands are at rest.
When tremor first begins it is slight in degree and extent, and occurs
generally only on voluntary effort. Later there may be a constant
trembling even when the part is at rest. Beginning usually in the
hands, it may extend to the head and legs. It is seen in the tongue
and facial muscles after the disease has lasted for some time.
In some cases the trembling can be controlled to some extent by a
strong effort of will. The tremor from alcohol or opium is most marked
when the individual has been without the use of the stimulant for a
short time, and the trembling may be temporarily checked by
renewing the dose of alcohol or opium as the case may be.
The tremor does not begin at once on section of the nerve, but
comes on after a few days. As the peripheral end of the nerve
undergoes degeneration the tremor increases. It may last months or
even years.
PARALYSIS AGITANS.