UK Adjudicators Newsletter December 2021

WWW.UKADJUDICATORS.CO.UK
DECEMBER 2021 NEWSLETTER
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EDITORS COMMENTS
It was a real pleasure to meet so many panel
members and users of our nomination services
at the recent Adjudication Society conference.
Like me I’m sure many of you have welcomed
the opportunities to network through face to
face meetings. Lord Justice Coulson addressed
the conference and again confirmed his belief
that the power and process exemptions should
be removed, hopefully Parliament and the
government will listen and allocate the time
for this further refinement of the Act.
The 16 October 2022 will mark the fifth year
since UK Adjudicators began making
nominations of adjudicators in the United
Kingdom, if you would be interested in
attending a lunch on Sunday the 16 October
2022 in London please do let me know.
Matt Drake has kindly offered to help organise
an event in the North West next year, ideally
we would like events in London, Scotland,
Belfast, Dublin and Birmingham as well so if
you would like to organise one of these please
get in touch.
With the month of December the threat of an
ambush looms for those with disputes and UK
Adjudicators are available 365 days of the year
to make a nomination if needed.
The SCL London Annual lunch is a sell out again
and we have only a few seats left for the UK
Adjudicators table at the SCL London Annual
lunch, if you would like to atted please let us
know as soon as possible, each place is £108.00
inclusive of VAT .
The Society of Construction Law International
Conference took place in November and
papers and slides on adjudication accompany
this newsletter.
In closing I would like to wish you all a very
Merry Christmas and a safe and prosperous
New Year.
Sean Gibbs LLB(Hons) LLM MICE FCIOB FRICS
FCIARB, is the Chief Executive Officer of
Hanscomb Intercontinental and is available to
sit as an arbitrator, adjudicator, mediator,
quantum expert and dispute board member.
sean.gibbs@hanscombintercontinental.co.uk

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THE FIFTH ANNUAL REPORT ON
CONSTRUCTION ADJUDICATION IN
IRELAND
On 01 November 2021, the ‘Fifth Annual
Report of the Implementation of the
Construction Contracts Act 2013 (the ‘Report’)
was published. The Construction Contracts Act
2013 permits the referral of a ‘payment
dispute’ to adjudication. The Report covers the
period from 26 July 2020 to 25 July 2021,
however, the Report does not include
adjudications where the parties agreed to
appoint an adjudicator without recourse to
Construction Contracts Adjudication Service.
During the period covered by the Report, 51
applications were made for the appointment
of an adjudicator.
The Report notes that architects and quantity
surveyors made up the majority of
adjudicators appointed, with most disputes
relating to the Dublin region. The most
common type of dispute referred was between
a main contractor and sub-contractor with a
fairly even distribution of interim and final
payment disputes. Most disputed amounts
were in the €100K to €500K bracket but four
disputes were in the €10M+ bracket. However,
the highest amounts awarded were in the €1M
to €5M bracket with one award as low as €5K.
A decision was reached in the majority of
cases, although, one adjudicator resigned for
jurisdictional reasons. In the main, the
Referring Party was successful, but some
decisions were considered split decisions.
Most adjudicators took 42 days to reach a
decision, although, the parties agreed a longer
timeframe on some occasions. Most
adjudicators billed between €251 and €300 per
hour, although, some billed over €400 per
hour. In the majority of cases, the adjudicator’s
fees fell within the €5K to €10K range.
The Report highlights a general upward trend
in the use of adjudication in Ireland. In the first
year that adjudication was introduced only one
application was made to appoint an
adjudicator compared to 51 applications in
year 5. Coupled with this the High Court has
delivered a number of important judgments,
which are supportive of adjudication and has
brought much needed clarity as to how the
court might approach the topic. However, the
court has indicated that case law from England
and Wales cannot be simply ‘read across’ to
the Irish legislation and that case law in Ireland
needs to be developed incrementally.
Paul Hughes phughes@sharpepritchard.co.uk
London

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All doom and gloom for insolvent
companies? Understanding the link
between insolvency and
adjudication through the Court of
Appeal's decision in John Doyle
Construction Ltd v Erith Contractors
Ltd
The Court of Appeal (CoA) recently upheld
Fraser J’s judgment in John Doyle Ltd (In
Liquidation) v Erith Contractors Ltd [2020]
EWHC 2451, establishing guidance on the
necessary security arrangements for insolvent
companies in adjudication proceedings. Here,
the CoA re-explored the distinction between
adjudication and insolvency following the
Supreme Court decision of Bresco Electrical
Services Ltd v Michael J Lonsdale Ltd (Bresco).
This blog post will look at whether insolvent
companies can enforce a valid adjudicator’s
decision, and how the courts will apply the
decision in Bresco when deciding whether to
award summary judgment to an insolvent
company.
Background
In October 2020, the High Court refused to
enforce the adjudicator’s decision in John
Doyle Construction Limited (JDC) v Erith
Contractors Ltd, due to the applicant’s
inadequate security offering.
This fairly surprising decision came only four
months after the Supreme Court case of Bresco
Electrical Services Ltd v Michael J Lonsdale
(Electrical) Ltd, where it was held insolvent
companies have the right to refer a dispute to
adjudication.
On 7 October 2021, the CoA dismissed JDC’s
appeal and decided to use its decision as a way
of clarifying the burden on a claimant company
in liquidation seeking to enforce an
adjudicator’s decision.
The issue was whether a company in
liquidation, with a valid adjudication decision
in its favour, but facing a set-off and
counterclaim from the other party, is entitled
to summary judgment at all.
Outcome of the case
In order to come to his decision, the judge
posed himself a number of questions relating
to this matter and answered them as follows:
In what circumstances will a company in
liquidation be entitled to summary judgment
on a valid adjudicator’s decision in its favour?
Here, the Judge based his decision on whether
awarding summary judgment of the award
would risk depriving Erith (the paying party) of
security for its future cross claim.

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Are those circumstances present here, such
that JDC is entitled to a summary judgment?
The judge answered this with a resounding ‘no’
due to the inadequate security offered by JDC
and its liquidators. Perhaps, if the security had
been more substantial than a mere ‘letter of
intent’, summary judgment may have been
awarded. In particular, the judge in Bresco
suggested that an appropriate undertaking
from the liquidators, ring-fencing any awarded
amount, might be acceptable in some
circumstances.
Would a stay of execution be granted in any
event? The judge concluded that even if he was
wrong in his answers to questions 1 and 2
above and summary judgment was granted,
Erith would be entitled to stay of execution in
any event.
Judge’s criticisms of the case
From the outset, the court commented that
more generally, the process for adjudication
followed by a summary judgment application
had not been established with an insolvent
company in mind, and emphasised how
important it was for an insolvent company to
outline the contentious issues clearly. Here,
JDC had done the opposite, and produced
unreasonably long witness statements as
evidence.
The judge was also critical of the length of time
taken between the dispute arising (by the time
the works were completed in 2012) and the
date of the referral to adjudication (2018) with
the consequent difficulties to the parties with
gathering evidence and witness statements.
Key takeaways
The main point to take away from this case is
how imperative it is for an insolvent party to be
able to provide adequate security in order to
have a chance of obtaining summary judgment
for a valid adjudication award. Without this, it
is unlikely that a party in liquidation will be
successful in an application for summary
judgment.
So, following the decision in Bresco it has been
confirmed that an insolvent company has the
right to adjudicate. However, the judgment in
JDC has shown that while obtaining an
adjudication award might be a useful step in
resolving a dispute between the parties, any
monetary award will only be summarily
enforced in limited circumstances. Therefore,
it might be worth considering alternative
solutions which may ultimately be more cost-
effective than adjudication.
Claire Perry and Ella Whelan

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UK ADJDUCIATORS LONDON 2021
ADJDUCIATION & ARBITRATION
CONFERENCE
The conference was another great success with
attendess from across the globe. If you want to
view the six panels videos or read the
conference pack please go to the UK
Adjudicators website.
https://www.ukadjudicators.co.uk/conferenc
es

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SCL ANNUAL LONDON LUNCH
UK Adjudicators will be hosting a table again
at the SCL London lunch on the 11 February
2022. It is being held at the Grosvenor House
from 12.00.
If you would like to attend the cost is £90.00
per person plus VAT.
Please email if you would like to attend and
an invoice will be forwarded that requires
immediate payment:
sean.gibbs@hanscombintercontinental.co.uk
TCC COURT JUDGEMENTS
November
• Adferiad Recovery Ltd v
Aneurin Bevan University
Health Board [2021] EWHC
3049 (TCC) (16 November
2021)
• Blue Manchester Ltd v Bug-Alu
Technic GmbH & Anor [2021]
EWHC 3095 (TCC) (19
November 2021)
• Crest Nicholson Operations Ltd
& Anor v Grafik Architects Ltd
& Anor [2021] EWHC 2948
(TCC) (10 November 2021)
• Mansion Place Ltd v Fox
Industrial Services Ltd [2021]
EWHC 2972 (TCC) (12
November 2021)

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The DRBF International Conference will be
taking place in London in 7 – 8 May 2022.
Leading speakers, lawyers, experts, clients,
dispute board members, dispute board users
and contractors will be attending.
FORTHCOMING EVENTS
Thursday, December 2,
2021 - 5:30 PM
Jurisdiction, recognition and enforcement of
judgments in the UK and Ireland post Brexit
Belfast
Speaker(s): Mr Justice Humphreys and
Anna Rowan, Barrister
Venue: Law Society of Northern Ireland,
96 Victoria Street, Belfast BT1 3GN
For more info
Tuesday, December 7,
2021 - 6:30 PM
Contract renegotiation, consideration and duress
in the light of Covid
London
Chair: Jonathan Pawlowski, Chair of
SCL
Speaker(s): The Right Honourable Lord
Justice Coulson, President of SCL
Venue: National Liberal Club and Online
For more info
Tuesday, February 1,
2022 - 6:30 PM

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TBC
London
For more info
Friday, February 11,
2022 - 12:00 PM
The SCL Annual London Lunch
London
Speaker(s): Hannah Fry - Hannah is a
Professor in the Mathematics of Cities.
She is a mathematician, a best-selling
author, an award winning science
presenter and the host of numerous
popular podcasts and television shows
Venue: Grosvenor House A J W Marriott
Hotel Park Lane London W1K 7TN
Full details in this flyer
For more info
Tuesday, March 1, 2022 - 6:30
PM
TBC
London
For more info
Friday, March 4, 2022 - 8:15 AM
The Society of Construction Law Annual Spring
Conference 2022
Leeds
Speaker(s): Mrs Justice O'Farrell DBE,
Omar Eljadi - Atkin Chambers, John
Riches - Henry Cooper Consultants Ltd,
Tom Owen - Keating Chambers, Michael
Levenstein and David Pliener -
Gatehouse Chambers
Venue: The Royal Armouries, Armouries
Drive, Leeds LS10 1LT
Full details in this flyer
For more info
SCL INTERNATIONAL CONFERENCE
2023
The Society of Construction Law 10th
International Conference will be hosted by SCL
Turkey in Istanbul in 2023.

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9th International Society of
Construction Law Conference 2021
3–5 November 2021, Auckland
Adjudication, Past Present and Future
BUILDING FOR CHANGE

9th International Society of Construction Law Conference 2021
Session 3 - Thursday, Nov 4, 2021-3:30 PM to 5:10 PM - Track 1
ADJUDICATION – Tuhinga o Mua, Inaianei & Muri
(Past, Present & Future)
Kia whakatōmuri te haere whakamua
‘I walk backwards into the future with my eyes fixed on my
past’
Ka Mua Ka Mur – ‘Walking Backwards into the Future’

John Cock
Hong Kong
On Q Consulting
Hanscomb
Intercontinental
Sean Gibbs
England
Hanscomb
Intercontinental
Johan Beyers
South Africa
Keating Chambers
Joanna Seetoh
Singapore
LVM Law Chambers

CONSTRUCTION ADJUDICATION IN HONG KONG:
THE PAST

1990s
 Airport Core Programme (1991-98)
 Contractual adjudication under ACP General Conditions of Contract 1992
Edition [the “ACP Conditions”] for 7 of the 10 ACP projects
 4 matters referred to and resolved by adjudication
 Interim binding decisions – none challenged later
 Private Sector Developers and Utility Providers
 Contractual adjudication under in-house private forms of contract
 No matters known to have been referred under developer contracts
 11 matters referred under one utilities contract
 Non-binding decisions – process not well received

2000s
 Tang Report (2001)
 Recommended to outlaw “pay-when-paid” provisions
 Recommended consideration be given to enacting security of payment
legislation [“SOPL”] along lines of legislation in NSW, Australia
 ETWB Briefing Paper to LegCo (2005)
 SOPL ‘unnecessary under local circumstances’
 HK Government Works Contracts Pilot Adjudication Scheme (2005)
 Contractual adjudication as step in tiered DR process
 Adjudication not compulsory for either party
 Only 1 or 2 matters known to have been referred

2010s
 3rd International SCL Conference, Hong Kong (2010)
 Speech by Mrs Carrie Lam, then Secretary for Development
 Cited positive feedback from the pilot scheme
 Stated Government was preparing internal guidelines relating to adjudication
 DEVB Survey (2011-12)
 Survey of construction industry stakeholders by Development Bureau [“DEVB”]
and Construction Industry Council [“CIC”]
 Revealed significant payment problems due to ‘pay when paid’ clauses and
delayed payments
 Government considered it necessary to adopt a legislative approach

2010s (cont.)
 SOPL Consultation (2012-16)
 Consultant appointed and working group established
 Detailed consultation document published with 23 specific proposals for
industry feedback (June 2015)
 ‘Enthusiastic response’ received, with 1,116 submissions from industry (August-
September 2015)
 Final Consultation Report published with results (April 2016)
 Found ‘broad general support’ for SOPL, but ‘divergent views’ on certain aspects
 SOPL Development and Drafting (2016-20)
 Task force of stakeholder representatives established to iron out divergent views
 Consensus generally reached on all aspects except whether adjudicators should
have jurisdiction to decide on entitlement for EoT

In summary, the 2009 Act has introduced some significant amendments : -.
1. Construction Contracts no longer need to be in writing to be subject to the statutory regime.
2. The 2009 Act prohibits ‘pay when certified clauses’ (which are tied into other contracts). The 1996 Act required an
adequate mechanism for determining payments to be included in a construction contract. The 2009 Act states that
this provision will not be satisfied if the mechanism refers to ‘conditional payments’
3. Payment notices must be issued no later than five days after the payment due date. In that notice the payer should
state the sum they believe is due and the basis for that calculation. If the payer fails to issue a notice within the
relevant timeframe then the payee can issue a notice instead. The sum stated in the notice may become the sum due
and payable (subject to withholding notices and pay less notices).
4. Contractors have enhanced rights to suspend works. If a sum that is due is not paid by the final payment date then
a contractor can suspend works. The 2009 Act provides that:
a. a contractor can suspend all or part of the works it is undertaking;
b. a contractor can recover a reasonable amount in relation to its costs and expenses caused by the suspension
c. a contractor will be entitled to an extension of time in respect of the delay caused by the suspension of works
5. Both parties to a construction contract can refer a dispute to an adjudicator to be determined. Adjudications are a
swift way of resolving disputes and are usually concluded within 28 days. The 2009 Act makes some subtle changes
to the rules relating to adjudication, for example:
a. a term in a construction contract which requires one party to pay the costs of the adjudication, regardless of the
final outcome, is prohibited unless the agreement relating to that is made in writing after an adjudication notice has
been served.
b. a new slip rule has been introduced to enable an adjudicator to amend their decisions to correct any clerical or
typographical errors.

• SOLE ADJUDICATOR CAN BE AGREED BY PARTIES OR NOMINATED BY
ANB TO DECIDE DISPUTES
• ADJUDICATION APPLIES TO CONSTRUCTION CONTRACTS ORAL OR
WRITTEN
• ADJUDICATOR DECIDES ANY DISPUTE PROVIDED IT HAS
CHRYSTALLISED
• REACHES DECISION 28 DAYS AFTER DATE OF REFERRAL
• DECISION EXTENDED 14 DAYS UNILATERALLY REFRRING PARTY OR
MORE BY AGREEMENT OF PARTIES
• INTERIM BINDING DECISION
• SWIFT ENFOFCEMENT BY TCC COURT

IMPROVEMENTS – REMOVE POWER, PROCESS AND OCCUPIER EXEMPTIONS

CONSTRUCTION ADJUDICATION IN AFRICA

Construction adjudication in Africa:
 There are presently no statutory adjudication schemes in any
African country
 Adjudication has nevertheless been a feature of large African
construction projects since at least 1995
 Adjudication in Africa is a creature of contract, not statute

Construction adjudication in Africa:
 World Bank historically a major funder of large
infrastructure projects in Africa, introduces adjudication
as funding requirement in 1995
 World Bank favours the FIDIC suite
 FIDIC introduces Dispute Adjudication Board into its
Orange Book in 1995 and its Red Book in 1996 -
decisions are binding pro tem pending final
determination on arbitration

Adjudication in Africa:
 Outside of South Africa, adjudication has not seen
widespread adoption in Africa into domestic construction
standard forms
 This is, however, changing – e.g. JBCC Green Book in Kenya

Adjudication in South Africa:
 Four suites of standard forms approved for government
procurement:
• FIDIC – Red, Yellow and Silver Books, mostly 1999 ed
• JBCC – building contract originally based on JCT, 80%
of all projects
• GCC - General Conditions of Contract, for civil
engineering works, published by SAICE
• NEC
• CIDB Standard Professional Services Contract – for
professional service provision on all projects

Adjudication in South Africa:
 JBCC and GCC introduced contractual adjudication –
decision binding pro tem pending arbitration or litigation
– in 2004
 Construction Industry Development Board prescribed
adjudication for government procurement in Best
Practice policy document in 2005
 Contractual adjudication included as opt-in where NEC is
used on government projects
 SPSC offers choice of adjudication or mediation -
mediation usually preferred

Court support for adjudication in South
Africa:
 Efficacy of contractual adjudication regime critically
dependent on court support
 Some considered a statutory scheme to be a prerequisite
for effective enforcement of adjudication decision
 However, SA Courts enforce adjudication decisions very
robustly

Court support for adjudication in South
Africa:
 Whereas established grounds for opposing enforcement
(lack of jurisdiction, gross irregularity in procedure etc)
have developed in other jurisdictions this has not been
the case in South Africa
 The approach by SA Courts is that complaints about the
validity of the decision should be addressed in final
dispute proceedings – on arbitration or litigation – and
not by the High Court in review proceedings

CONSTRUCTION ADJUDICATION IN SINGAPORE
Joanna SEETOH
Associate Director
Accredited Specialist in Building and Construction Law,
Singapore Academy of Law

Road Map
 Building & Construction Industry Security of Payment Act (Cap 30B) (“SOPA”) –
Genesis & Introduction
 SOPA – Key Aspects
 SOPA 2004 – A legislative success?
 SOPA 2018 – Key Amendments
 Adjudication in Singapore – What lies ahead?

SOPA – Genesis & Introduction
 Came into force in April 2005
 Modelled after similar legislation in Australia, New Zealand and the UK
 Regulated by
 SOPA
 SOP Regulations
 Rules of Authorised Nominating Body (SMC)

SOPA – Key Aspects
 Right to payment for works / supply of goods and services
 Bars “pay when paid” and “pay if paid” clauses in any contract
 Statutory default payment periods
 Right to apply for adjudication
 Statutory entitlement to suspend works if adjudicated amount not paid
 Allows other recourse to claimant to enforce adjudication determination

SOPA 2004 – A Legislative Success?
 400 – 500 cases administered by the SMC each year
 BUT Singapore Courts required to clarify various aspects of SOPA 2004
 SOPA 2004 remained unamended for close to 15 years

SOPA 2018
 Amendment Bill passed on 2 Oct 2018; came into force on 15 Dec 2019
 Key provisions:
 Adjustment to the time for service of payment claims
 Clarification of the payment response regime
 Codification of the grounds for setting aside adjudication determinations

SOPA 2018 – Time for service of payment claims (1)
SOPA 2004, S. 10(2)
(2) A payment claim shall be served —
(a) at such time as specified in or determined in accordance with the
terms of the contract; or
(b) where the contract does not contain such provision, at such time
as may be prescribed.

 Previously – Strict compliance with Section 10(2) required
 Audi Construction v Kian Hiap Construction (2017)
 SGHC
 Strict compliance with SOPA Section 10(2) required
 PC invalid → determination set aside
 SGCA
 Where the contract provides for service of PCs on a stipulated date, this
means service on that date and not service by that date
 PC was validly served because:
• C had good reason for effecting service before 20 Nov 2016; and
• No confusion as to PC’s operative date

SOPA 2018, SS. 10(2)(A) AND 10(2A)
(2) A payment claim must be served —
(a) not later than —
(i) the date, or the last day of a period, specified in, or determined in accordance
with, the terms of the contract relating to the purpose of this subsection; or
(ii) the date prescribed for the purpose of this subsection if the contract does not
contain such terms.
(2A) In subsection (2) —
(a) a payment claim that is served before the date or last day mentioned in subsection
(2)(a)(i) is deemed to have been served on that date or day, as the case may be; and
(b) a payment claim that is served before the prescribed date mentioned in subsection
(2)(a)(ii) is deemed to have been served on that date.

SOPA 2018 – Clarification of Payment Response Regime (1)
SOPA 2004, S. 15(3)
(3) The respondent shall not include in the adjudication response, and the
adjudicator shall not consider, any reason for withholding any amount,
including but not limited to any cross-claim, counterclaim and set-off,
unless —
(a) where the adjudication relates to a construction contract, the reason
was included in the relevant payment response provided by the respondent
to the claimant; or
(b) where the adjudication relates to a supply contract, the reason was
provided by the respondent to the claimant on or before the relevant due
date.

 Previously – Argued that SOPA Section 15(3) did not extend to jurisdictional
objections
 Grouteam v UES Holdings (2016) – SGCA clarified that parties were not permitted
to raise jurisdictional objections unless they were raised at the “earliest possible
opportunity”, being the payment response

SOPA 2018, SS. 15(3) AND 15(3A)
(3) Subject to subsection (3A), the respondent must not include in the adjudication response an objection of any nature, unless —
(a) where the adjudication relates to a construction contract, that objection was included in the relevant payment response provided by
the respondent to the claimant; or
(b) where the adjudication relates to a supply contract, that objection was raised by the respondent to the claimant in writing on or before
the relevant due date.
(3A) Despite subsection (3), the respondent may include in the adjudication response an objection mentioned in subsection (3) if —
(a) in the case of an adjudication that relates to a construction contract —
(i) the circumstances of that objection only arose after the respondent provided the relevant payment response to the claimant; or
(ii) the respondent could not reasonably have known of the circumstances when providing the relevant payment response to the
claimant; or
(b) in the case of an adjudication that relates to a supply contract —
(i) the circumstances of that objection only arose after the relevant due date; or
(ii) the respondent could not reasonably have known of the circumstances by the relevant due date.

SOPA 2018 – Codification of grounds for setting aside ADs (1)
SOPA 2018, S27(6)
(6) The grounds on which a party to an adjudication may commence proceedings under subsection (5) include, but are not
limited to, the following:
(a) the payment claim was not served in accordance with section 10;
(b) the claimant served more than one payment claim in respect of a progress payment, otherwise than permitted
under section 10;
(c) the payment claim was in respect of a matter that has already been adjudicated on its merits in proceedings under
this Act;
(d) the adjudication application or the adjudication review application was not made in accordance with the provisions
of this Act;
(e) the adjudicator failed to comply with the provisions of this Act in making the adjudication determination;
(f) the adjudication determination requires the claimant to pay an adjudicated amount to the respondent;
(g) a breach of the rules of natural justice occurred in connection with the making of the adjudication determination;
(h) the making of the adjudication determination was induced or affected by fraud or corruption.

SOPA 2018 – Setting aside of ADs (2)
 Section 27(7) – Respondent may not apply to set aside unless the grounds of objection
on which it relies for the application was included in its adjudication response
 Section 27(8) – Expansion of Court’s powers in respect of setting aside applications.
Court may:
 set aside an adjudication determination in whole or in part;
 remit the whole or any part of the adjudication determination to the adjudicator;
 correct in the adjudication determination any clerical mistake, error arising from an
accidental slip or omission, or a defect of form; and
 award costs to any party to an adjudication.

Adjudication in Singapore – What lies ahead?
 Step in the right direction
 BUT unlikely to spell the end of litigation
 Several areas of ambiguity remain e.g. Section 17(2A)
“(2A) In determining an adjudication application, an adjudicator must disregard any part of a
payment claim or a payment response related to damage, loss or expense that is not supported
by —
(a) any document showing agreement between the claimant and the respondent on the
quantum of that part of the payment claim or the payment response; or
(b) any certificate or other document that is required to be issued under the contract.”

CONSTRUCTION ADJUDICATION IN HONG KONG:
THE FUTURE

Draft TCW and SOP Framework
 Draft Technical Circular (Works) [“TCW”] circulated for industry consultation
(March-April 2021)
 Included draft SOP Framework summarising main SOPL provisions as then
proposed by DEVB
 Announced plan to implement contractual ‘Spirit of SOPL’ concept pending
introduction of SOPL
 Technical Circular (Works) No. 6/2021 – Security of Payment Provisions in Public
Works Contracts formally released on 5 October 2021, with Spirit of SOPL to be
incorporated in all new public works contracts

Proposed HK ‘Spirit of SOPL’ Scheme
 Implementation to commence for tenders invited from Group B and C contractors
from 31 December 2021 and from 1 April 2022 for other contractors and suppliers
 Scheme to apply to all Government works contracts until enactment of the SOPL
 ‘Administrative Register of Adjudicator Nominating Bodies’ [the “Register”] to be
established by DEVB and referenced in the contracts
 Objectives:
 Promote fair and timely payment at all contract and sub-contract levels
 Provide for interim resolution of payment disputes by adjudication

 Application:
 All public works contracts under DEVB (including building, civil and
infrastructure works)
 All forms of contact i.e. HKSARG GCC and NEC
 All construction subcontracts, supply and services contracts (including
consultancy services) at all tiers
 Payment key provisions:
 Right to progress payments monthly (or as otherwise agreed)
 Payment response by paying party within 30 days and payment of admitted
amount within 60 days from date of payment claim
 Conditional payment provisions (‘pay when paid’ etc.) rendered ineffective and
unenforceable

 Adjudication key provisions:
 28 day time limit after payment dispute arises to refer to adjudication
 ANB to appoint Adjudicator within 5 working days after referral
 Adjudicator to issue decision within 55 working days from date of appointment
(or longer period if agreed by the parties)
 Adjudicator’s decision void if not made within specified time limit
 Adjudicated amount to be paid within 30 days after decision (or by such other
date decided by the Adjudicator)
 Adjudicators to have power and jurisdiction to decide time-related costs and
associated entitlement to EOT
 EOT so decided not binding, however no liability for liquidated damages if
works completed within EOT decided by Adjudicator

 Other key provisions:
 Claiming party may suspend or reduce rate of progress if admitted /
adjudicated amount not received
 Unpaid subcontractors may apply to Employer for direct payment by way of
enforcement

John Cock
Hong Kong
On Q Consulting
Hanscomb
Intercontinental
Sean Gibbs
England
Hanscomb
Intercontinental
Johan Beyers
South Africa
Keating Chambers
Joanna Seetoh
Singapore
LVM Law Chambers
DISCUSSION

8028514.1
Adjudication –
Tuhinga o Mua, Inaianei & Muri (Past, Present & Future):
The English Story
A paper presented at the 9th
International Society of Construction Law
Conference 2021
Sean Sullivan Gibbs, Hanscomb Intercontinental, London United Kingdom
4 November 2021
www.constructionlaw2021.com

Adjudication – Tuhinga o Mua, Inaianei & Muri (Past, Present & Future):
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International Society of Construction Law Conference – New Zealand
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Abstract
Kia whakatōmuri te haere whakamua
‘I walk backwards into the future with my eyes fixed on my past’
Ka Mua Ka Mur
‘Walking Backwards into the Future’
These famous Maori proverbs set the framework of this panel’s discussion of the future of
Adjudication by examining the past and present forms in different common law jurisdictions
including those with well-established Adjudication regime, and those looking to implement
statutory Construction Adjudication in the near future – namely England and Wales,
Singapore, Malaysia, Hong Kong and South Africa. Hong Kong’s airport construction and
supporting infrastructure during the 1990’s inspired the drafters and supporters of Statutory
Adjudication in the UK.
The success in the UK has inspired its use in South Africa, Singapore and Malaysia with very
different approaches. Ultimately these have led to a full circle where Hong Kong is now
looking to bring in statutory adjudication for its construction and engineering industries and
can take the best and avoid the worst from the statutory drafters and anticipate how the
judiciary may receive, support and even develop it through judicial precedent. The paper will
explore how each jurisdiction’s common law system and willingness to listen to persuasive
common law decisions offer a platform to make adjudication work in both contractual and
statutory forms.
This paper looks at statutory construction adjudication in the English context and how the
courts flexibility and support have shaped the model of adjudication now found in England.

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Contents
Statutory Construction Adjudication in England 4
Subsequent Parliamentary Amendments 6
Judicial Support 7
Legal Precedents 8
Supreme Court 8
Court of Appeal 9
High Court 11
English Statutory Construction Adjudication 17
Suggestions for improvements 20

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Statutory Construction Adjudication in England
1 On the 24 July 1996, The Housing Grants, Construction and Regeneration Act 1996 was
enacted (the Act). This primary legislation was followed by The Scheme for Construction
Contracts (England and Wales) Regulations 1998 (the Scheme) which was made by the
Secretary of State on the 6th of March 1998 and came into force on the 1st May 1998. Each
jurisdiction in the United Kingdom has its own slightly different Scheme, but for the purposes
of this discussion that of England will be discussed.
2 The Construction Contracts (England and Wales) Exclusion Order 1998 also came into effect
on 1 May 1998. The order sets out four particular classes of contract that are excluded from
the operation of Part II of the Act. These are:
(a) Contracts relating to agreements made under specified statutory provisions, in particular
those relating to:
(i) sections 38 and 278 of the Highways Act 1980;
(ii) sections 106, 106A and 299A of the Town and Country Planning Act 1990;
(iii) section 104 of the Water Industry Act; and
(iv) section 1 of the National Health Service (Private Finance) Act1997.
(b) Contracts entered into by specified public bodies under the private finance initiative (or a
project applying similar principles).
(c) Contracts that relate to finance agreements as defined under this section.
(d) Contracts which are development agreements including a provision for the grant or
disposal of a relevant interest in land on which construction operations take place. (A relevant
interest is defined as a freehold or a leasehold for a period which is to expire no earlier than
12 months after the completion of the construction operations under the contract.)
3 Since the 1st of May 1998 the United Kingdom has had two types of construction
adjudication; contractual and statutory. This is in contrast to South Africa which currently only
has contractual adjudication1
. The reasons for the two types of adjudication are due primarily
to lobbying by powerful interests and will be touched upon in more detail.
4 Parliament recognised that the primary purpose of adjudication was that any dispute could be
referred and that an interim binding decision would be given. This closely resembled the
adjudication used on the |Hong Kong Airport Core Programme where adjudication decisions
were contractually ‘binding but not final’, and therefore subject to final resolution by arbitration,
litigation or agreement2
.
1 Basil Read (Pty) Ltd v Regent Devco (Pty) Ltd (41108/09) [2010] ZAGPJHC 75 (9 March 2010) dispute under JBCC form of contract , and Freeman,
August Wilhelm NO, Mathebula, Trihani Sitos de Sitos NO v Eskom Holdings Limited an unreported judgement of the South Gauteng High Court dated 23
April 2010, dispute under NEC form of contract, Sasol Chemical Industries Ltd v Odell unreported judgement of the Free State High Court, Bloemfontein
dated 20 February 2014, dispute under NEC form of contract , Hattingh & Maritz, Should the application and practice of construction adjudication be
underpinned by legislative intervention in the South African construction industry? 2013, CIB Publication 390, Tubular Holdings (Pty) Ltd v DBT
Technologies (Pty) Ltd (06757/2013) [2013] ZAGPJHC 155; 2014 (1) SA 244 (GSJ) (3 May 2013) dispute about DAB under FIDIC
Stefanutti Stocks (Pty) Ltd v S8 Property (Pty) Ltd (20088/2013) [2013] ZAGPJHC 388 (23 October 2013) dispute under JBCC form of contract
2 Please refer to John Cock’s paper on Hong Kong for more information

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5 It was recognised that this may lead to ‘rough justice’3
but that it was designed to assist
parties cashflow by making sure parties were paid and monies flowed through the supply
chain.
6 Historically the decision to use adjudication had been influenced by two major projects where
forms of adjudication had been used successfully. These being the Hong Kong Airport project
and the Channel Tunnel. Both projects had United Kingdom based contractors, consultants
and lawyers heavily involved with them and supported the introduction of adjudication.
7 Sir Michael Latham’s report, Constructing The Team of July 1994 took cognisance of the
Hong Kong airport tiered dispute resolution procedures and recommended the introduction of
adjudication underpinned by legislation. This was to have no restrictions on the issues
capable of being referred to the adjudicator. The award of the adjudicator should be
implemented immediately with resort to the courts should a party refuse to implement the
award of an adjudicator. With a hope that the courts may wish to support the system of
adjudication by agreeing to expedited procedures for interim payments.
8 During the passage of the Act and Scheme through Parliament powerful lobbies managed to
get the following types of construction contract exempted from statutory adjudication these
being reflected in the s105(2) exemptions:
(2) The following operations are not construction operations within the meaning of this Part-
(a) drilling for, or extraction of, oil or natural gas;
(b) extraction (whether by underground or surface working) of minerals; tunnelling or boring,
or construction of underground works, for this purpose;
(c) assembly, installation or demolition of plant or machinery, or erection or demolition of
steelwork for the purposes of supporting or providing access to plant or machinery, on a site
where the primary activity is - (i) nuclear processing, power generation, or water or effluent
treatment, or (ii) the production, transmission, processing or bulk storage (other than
warehousing) of chemicals, pharmaceuticals, oil, gas, steel or food and drink;
(d) manufacture or delivery to site of- (i) building or engineering components or equipment, (ii)
materials, plant or machinery, or (iii) components for systems of heating, lighting, air-
conditioning, ventilation, power supply, drainage, sanitation, water supply or fire protection, or
for security or communications systems, except under a contract which also provides for their
installation;
(e) the making, installation and repair of artistic works, being sculptures, murals and other
works which are wholly artistic in nature.
9 Section 106 exempted contracts with a residential occupier:
106 Provisions not applicable to contract with residential occupier
(1) This Part does not apply- (a) to a construction contract with a residential occupier (see
below).
(2) A construction contract with a residential occupier means a construction contract which
principally relates to operations on a dwelling which one of the parties to the contract
3 CJP Builders Limited v William Verry Limited [2008] EWHC 2025 (TCC) – rough justice is acceptable but not a breach of natural justice

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occupies, or intends to occupy, as his residence. In this subsection “dwelling” means a
dwelling-house or a flat; and for this purpose-“dwelling-house” does not include a building
containing a flat; and “flat” means separate and self-contained premises constructed or
adapted for use for residential purposes and forming part of a building from some other part of
which the premises are divided horizontally.
10 The two types of exemptions above do not prevent the parties from agreeing to use
adjudication on a contractual basis though; and many have chosen to do so particularly in
cases where a hybrid contract exists with some operations covered by the Act and some not,
so as to minimise uncertainties created about whether something falls into exempted
construction operations or not. Once Parliament had passed the Act and the Scheme it was
very much left to the courts to sort out what they meant and there have been hundreds of
court cases that have shaped adjudication in the United Kingdom and been of persuasive
value to other common law jurisdictions in shaping their use and understanding of
adjudication.
Subsequent Parliamentary Amendments
11 The Act and Scheme have been amended since their initial enactment following rounds of
consultation with the industry. These being reflected in the Local Democracy, Economic
Development and Construction Act 2009 and The Scheme for Construction Contracts
(England and Wales) Regulations 1998 (Amendment) (England) Regulations 2011.
12 The changes made by these amendments can be summarised as:
Oral contracts or partly written and partly oral contracts became subject to adjudication and
not just those in writing.
The slip rule was formally implemented by way of legislation, so adjudicators have specific
powers to correct clerical or typographical errors.
Any provision of a Construction Contract which concerns the allocation between the parties of
costs relating to the adjudication will be ineffective unless:
it is made in writing, is contained in the construction contract and confers power on the
adjudicator to allocate his fees and expenses as between the parties, or
it is made in writing after the giving of notice of intention to refer the dispute to adjudication.

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Judicial Support
13 The first court case that came before the courts was Macob Civil Engineering Ltd v. Morrison
Construction Ltd [1999] EWHC Technology 254. Lord Dyson gave judgment in favour of the
applicant Macob; had judgement not been given it is arguable that adjudication may not have
become the chosen means of dispute resolution for the UK construction industry.
14 I would suggest that the reason that adjudication has worked so well has been the courts
support for it and the Technology and Construction Court’s willingness to offer an expedited
enforcement process. The common law system of precedence has meant the courts have
helped shape and mould adjudication into a known and understood system with extremely
limited grounds of challenge to enforcement. There is no machinery in the Act or Scheme to
enforce an adjudicator's decision. The Technology and Construction Court (TCC) developed
the current procedure, which is set out in section 9 of the Technology and Construction Court
Guide (TCC Guide).
15 Ireland currently has not been as successful with the first enforcement proceedings taking
over eleven months before judgement4
; but their judiciary has implemented changes to make
the system swifter though decisions can be subjected to judicial review due to the way their
Act was drafted.
4 Gravity Construction Limited v Total Highway Maintenance Limited [2021] IEHC 19

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Legal Precedents
16 The courts have made judgements that define adjudication and where later decisions have
overruled them or legislation has changed the law they have not been cited in the cases that
follow. The cases are not intended to be exhaustive but rather illustrative of the courts
approach to supporting and developing adjudication by the judicious application of judicial
precedent. Indeed, this has helped other common law countries when they have had to
grapple with both statutory and contractual adjudications5
. In S&T (UK) Ltd v Grove
Developments Limited, Sir Rupert Jackson stated, “Adjudications are swift. They are
generally completed within 28 days. There is a limit to how much money people can spend
on their disputes in that limited time frame. Overall, the payment regime and the adjudication
regime have been successful. At least 14 overseas jurisdictions …. have adopted similar
rules”.
Supreme Court
17 Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc [2015] UKSC 38
Construction contracts incorporating the adjudication provisions in the Scheme for
Construction Contracts (England and Wales) Regulations 1998 Sch.1 contained an implied
term that the unsuccessful party was entitled to seek a final determination by litigation and, if
successful, obtain repayment of any sum paid pursuant to the adjudicator's decision. A claim
to enforce such a term had to be brought within six years of the date of payment.
Bresco Electrical Services Ltd (In Liquidation) v Michael J Lonsdale (Electrical) Ltd [2020]
UKSC 25
18 The Supreme Court allowed a sub-contractor's appeal against a decision to continue an
injunction restraining it from further conduct of an adjudication concerning a construction
contract dispute following its entry into insolvent liquidation. There was no incompatibility
between adjudication of such disputes and the insolvency process, including the set-off of
cross-claims, and adjudication would not be futile and a waste of resources.
5 For a light-hearted run through of twenty years see Jonathan Cope’s Construction Blog http://constructionblog.practicallaw.com/20-years-of-statutory-
adjudication/

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Court of Appeal
19 Pegram Shopfitters Ltd v Tally Weijl (UK) Ltd [2003] EWCA Civ 1750
It was necessary for the success of the summary judgment application for the judge to
conclude that neither of the defendant's contentions as to the contractual situation had any
real prospect of success.
20 Connex South Eastern Ltd v MJ Building Services Group Plc [2005] EWCA Civ 193
The Housing Grants, Construction and Regeneration Act 1996 s.108(2) enabled a party to
refer a dispute to adjudication at any time and a notice of adjudication given by a party long
after it had accepted a repudiatory breach of contract was not an abuse of process.
21 Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358
Under the Scheme for Construction Contracts (England and Wales) Regulations 1998 Sch.1
para.20(c) an adjudicator could decide questions of interest only if those questions were
matters in dispute that had been properly referred to him or that the parties had agreed should
be within the scope of the adjudication or were questions that the adjudicator considered to be
necessarily connected with the dispute within para.20.
22 John Roberts Architects Ltd v Parkcare Homes (No.2) Ltd [2006] EWCA Civ 64
On the correct interpretation of the agreement for adjudication the adjudicator's power to
direct the payment of legal costs was not limited to circumstances in which he made a
substantive contested decision on the dispute referred to him.
23 Lead Technical Services Ltd v CMS Medical Ltd [2007] EWCA Civ 316
On the evidence available to him a judge had erred in awarding summary judgment enforcing
an adjudicator's decision as there was a real prospect of showing that the adjudicator had
acted without jurisdiction.
24 Bothma (t/a DAB Builders) v Mayhaven Healthcare [2007] EWCA Civ 527
An adjudicator had lacked jurisdiction to make an award where he determined more than one
dispute between the parties without their consent.

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25 Speymill Contracts Ltd v Baskind [2010] EWCA Civ 120
The effect of fraud on adjudication decisions had been correctly analysed by the Technology
and Construction Court in SG South Ltd v King's Head Cirencester LLP [2009] EWHC 2645
(TCC), [2010] B.L.R. 47, [2009] 10 WLUK 762.
26 Lanes Group Plc v Galliford Try Infrastructure Ltd (t/a Galliford Try Rail) [2011] EWCA Civ
1617
A claimant who had taken only preliminary steps to seek an adjudication award was not
prevented from commencing a second adjudication about the same disputes; an adjudicator
did not have jurisdiction until referral documents had been sent to him. An adjudicator's
provisional decision based on the submissions of one party, disclosed for the assistance of
the parties, had not amounted to apparent bias or apparent pre-determination.
27 Systech International Ltd v PC Harrington Contractors Ltd [2012] EWCA Civ 1371
An adjudicator was not entitled to recover the fees which he had incurred in an adjudication
governed by the Scheme for Construction Contracts (England and Wales) Regulations 1998
because he had breached the rules of natural justice in reaching his decision, which was
unenforceable.
28 Harding (t/a MJ Harding Contractors) v Paice [2015] EWCA Civ 1231
On its proper construction, the Scheme for Construction Contracts (England and Wales)
Regulations 1998 Sch.1 Pt I para.9, preventing an adjudicator from considering a decision
previously determined in an adjudication, only applied where a dispute previously referred to
adjudication had actually been decided by the adjudicator. Parliament could not have
intended that if a claimant referred several disputes or issues to adjudication but the
adjudicator had only decided one of them, future adjudication about the other matters was
prohibited. Whether a subsequent dispute was substantially the same as an earlier one was a
question of fact and degree.

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High Court
29 Macob Civil Eng. Ltd v Morrison Construction Ltd [1999] EWHC Technology 254
The court commented that a mandatory injunction would rarely be appropriate for decisions
relating to payment (although different considerations would apply where the decision was
that a party should perform some obligation, e.g. return to site). Therefore the usual remedy to
enforce a decision would be to issue proceedings claiming the sum due and follow this by an
application for summary judgment. The correct approach to enforce an adjudicator's decision
is a claim form and summary judgment. A defendant cannot elect to serve notice of arbitration
to dispute the decision and at the same time argue that it is not an enforceable decision.
30 Outwing Construction Ltd v H. Randell & Son Ltd [1999] BLR 156
The court decided that the summary judgment enforcement route was proper and prudent to
enforce an adjudicator’s decision as the intention was that disputes that go to adjudication are
enforced without delay. The court will abridge time for summary judgment under Part 24 CPR,
provided the defendant is not prejudiced.
31 Northern Developments (Cumbria) Limited v J & J Nichol [2000] EWHC Technology 176
In respect of costs, His Honour held that an adjudicator had no jurisdiction to decide that one
party’s costs of the adjudication be paid by the other party. However, it was possible for the
parties to grant jurisdiction on the Adjudicator to decide costs by implied agreement of the
parties. In this case both parties asked in writing for their costs. As a result the Adjudicator
had jurisdiction to award costs.
32 Palmers Limited v ABB Power Construction Limited [1999] BLR 426
33 A contract can be partly for construction operations and partly for works not falling within that
definition. Adjudication can only be sought for that part of the contract that is for construction
operations. It is possible for the main contractor not to be entitled to seek adjudication when
his subcontractor can. The court further stated that noted that an Adjudicator had no power to
decide his own jurisdiction:
“Here, the principal dispute is one of jurisdiction, being one as to whether there is in being
such as contract at all. It is clearly appropriate for the courts to intervene since only when it
has declared that the relevant contract is a construction contract will an effective adjudication
be possible. This is particularly so given that there is no statutory power given to an
adjudicator, if appointed, to resolve disputes about his jurisdiction.”

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34 ABB Zantingh Ltd v Zedal Building Services Ltd [2000] EWHC Technology 40
HHJ Bowsher QC found that installing the wiring for standby generators to a site where
printing works were to be erected was a construction operation because the primary activity of
the site was printing, not power generation (which is excluded by section 105(2)(c)(i)). Power
generation was ancillary to the primary activity of printing, whether or not excess power may
be sold, and ancillary (or secondary) activities were not covered by the exception.
35 Fastrack Contractors Ltd v Morrison Construction Ltd [2000] EWHC Technology 177
HHJ Thornton QC held that the reference must refer to a single dispute, although that single
dispute may embrace a number of issues. "Dispute" was described as:
"...whatever claims, heads of claims, issues or contentions or causes of action that... the
referring party has chosen to crystallise into an adjudication reference."
An adjudicator can enquire into his own jurisdiction, but his decision will not bind the parties
and can be reviewed by the court.
36 Staveley Industries Plc v Odebrecht Oil & Gas Services Ltd [2001] 98(10) L.S.G. 46, TCC
The Act applies only to construction operations carried out in England, Wales (s. 104(6)) and
construction activities must be carried out on land or on the shore within the tidal reach.
Construction activities carried out on an oil rig are not covered by the 1996 Act. This being
different to the Malaysian position where the court found that work works done on a ship to
convert it into a Floating Production Storage and Offloading ("FPSO") vessel is construction
work within the meaning of "construction contract" under the Construction Industry Payment
and Adjudication Act 2012 ("CIPAA"). MIR Valve Sdn Bhd v TH Heavy Engineering Berhad
[2017] AMEJ 0538.
37 Mitsui Babcock Energy Services Ltd v Foster Wheeler Energia OY [2001] SLT 1158
The court held that the construction of two boiler plants on a site adjacent to an oil refinery
was not a construction operation (the works were excluded by section 105(2)(c)(ii)), even
though the boilers were not directly involved in the process of producing oil. The reasoning
was that the installation of the boilers was intended to further the primary activity of
processing the oil on the adjacent site.
38 Austin Hall Building Ltd v. Buckland Securities Ltd [2001] EWHC Technology 434
HHJ Bowsher QC confirmed that that the Human Rights Act 1998 didn’t apply to adjudicators.

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39 Conor Engineering Ltd v Constructions Industrielles de la Mediterranee (CNIM) SA [2004]
EWHC 899 (TCC)
Recorder David Blunt QC had to consider what the primary activity was on a site housing a
new plant constructed for both waste incineration and electricity generation. He said it was a
question of fact and, while the primary purpose was a relevant consideration, it was important
to distinguish between the primary activity and the primary purpose. On the facts, he was
satisfied that both the primary purpose and principal physical activity on the site was the
incineration of waste and that the site was developed as "a means of finding an alternative to
landfill sites for the purpose of disposing of waste". He accepted that generating electricity
was a "spin off" from the incineration process.
40 Carillion Construction v Devonport Royal Dockyard Ltd [2005] BLR 310
Mr Justice Jackson (as he then was) had the following to say on the issue of jurisdiction:
“(i) The adjudication procedure does not involve the final determination of anybody's rights
(unless all the parties so wish);
ii) The Court of Appeal has repeatedly emphasised that adjudicators' decisions must be
enforced, even if they result from errors of procedure, fact or law;
(iii) Where an adjudicator has acted in excess of his jurisdiction or in serious breach of the
rules of natural justice, the court will not enforce his decision;
(iv) Judges must be astute to examine technical defences with a degree of scepticism
consonant with the policy of the 1996 Act. Errors of law, fact or procedure by an adjudicator
must be examined critically before the Court accepts that such errors constitute excess of
jurisdiction or serious breaches of the rules of natural justice.”
41 Edenbooth Ltd v Cre8 Developments Ltd [2008] EWHC 570 (TCC)
Coulson J held that groundwork and drainage works did not fall within the exemption in
section 105(2)(d) and so did amount to construction operations.
42 North Midland Construction plc v AE&E Lentjes UK Ltd [2009] EWHC 1371 (TCC)
Ramsey J considered whether a sub-contractor's enabling and civil works fell within the
definition of works excluded from "construction operations" under section 105(2)(c). Even
though works were performed at a site where the primary activity was power generation, the
court held the enabling and civil works were not excluded works under section 105(2)(c).

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43 Cleveland Bridge (UK) Ltd v Whessoe-Volker Stevin Joint Venture [2010] EWHC 1076 (TCC)
Ramsey J followed his own decision in North Midland v Lentjes, holding that erecting
steelwork to piperacks and pipebridges at a liquefied natural gas terminal fell within the
exception in section 105(2)(c)(ii) of the Construction Act 1996. However, prior activities such
as fabrication drawings, off-site fabrication and delivery to site did not fall within the exception.
44 Arcadis UK Ltd v May and Baker Ltd (t/a Sanofi) [2013] EWHC 87 (TCC)
Where two adjudications were held between the same parties in relation to very similar
issues, there was nothing improper either in the first adjudicator's decision being put before
the second adjudicator or in the second adjudicator's having had regard to that decision.
45 Harding (t/a MJ Harding Building Contractors) v Paice [2014] EWHC 4819 (TCC)
Here the parties had negotiated the terms of the JCT Intermediate Building Contract, 2011
Edition (IC 2011) and agreed to delete Article 7, which referred to adjudication. However, they
did not delete or amend clause 9.2 of the contract conditions (which also referred to
adjudication). Ramsey J held that clause 9.2 remained part of the contract and it was
unnecessary for Article 7 to be included in the contract to bring the adjudication provisions
into effect.
46 Severfield (UK) Ltd v Duro Felguera UK Ltd [2015] EWHC 3352 (TCC)
In refusing a claimant summary judgment on its claim for payment under a contract, the court
highlighted the difficulties arising from hybrid contracts which covered both construction
operations within the Housing Grants, Construction and Regeneration Act 1996 s.105(1) and
operations in industries excluded under s.105(2) from the Act's provisions on adjudication and
payment regimes.
47 Baldwin and another v J Pickstock Ltd [2017] EWHC 2456 (TCC),
HHJ Simon Barker QC in the Birmingham District Registry of the Technology and
Construction Court (TCC) has held that an adjudicator could not resign after the date the
decision was due to be delivered (but wasn't) as the appointment had already lapsed.

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48 Engie Fabricom UK Ltd v MW High Tech Projects UK Ltd [2019] EWHC 1876 (TCC)
A contractor on a project for the construction of a plant that treated waste and generated
energy had a real prospect of successfully arguing that an adjudicator's decision concerning a
dispute with its subcontractor was invalid for lack of jurisdiction. The question of whether the
primary activity at the plant was power generation rather than the treatment of waste, which
would exclude the adjudicator's jurisdiction pursuant to the Housing Grants, Construction and
Regeneration Act 1996 s.105(2)(c), was not appropriate for summary judgment and should be
determined at trial.
49 Universal Sealants (UK) Ltd (t/a USL Bridgecare) v Sanders Plant and Waste Management
Ltd [2019] EWHC 2360 (TCC)
Jefford J held that the parties' contract to supply concrete did not contain an installation
element and so was not caught by the proviso in section 105(2)(d) of the Construction Act
1996. (Section 105(2)(d) excludes the manufacture or delivery to site of materials "except
under a contract which also provides for their installation".) She found that:
It was unnecessary for the contract to refer to or use the word "installation", but its absence
was indicative of the nature of the parties' contract.
Just because the concrete was poured where it was required under Universal's direction was
not "installation". Concrete starts to set once it is mixed and, because of this, is almost always
poured where it is required. Here, the act of delivery and pouring amounted to the same thing:
delivery. The proviso distinguishes between delivery and installation by requiring the contract
to "also" provide for installation. There was nothing in this contract that did that.
50 Equitix ESI CHP (Wrexham) Ltd v Bester Generacion UK Ltd [2018] EWHC 177 (TCC)
Although the parties' contract was a hybrid contract (it was to design and build an energy
generating plant), it was common ground that no excluded works were ever carried out on
site.
Coulson J held that the works that were undertaken were all preparatory works and fell within
the scope of section 105(1)(e). In reaching this conclusion, the court reviewed sections 104
and 105 of the Construction Act 1996 and looked at some of the case law concerned with
hybrid contracts, including North Midland v AE&E Lentjes, Cleveland Bridge and Severfield v
Duro (see Section 105(1)(e): preparatory works). The court held that it would make a
nonsense of the Construction Act 1996 if every preparatory or ancillary operation not
expressly identified in section 105(1) became an excluded operation. It would also be contrary
to the case law. It was only if the operation could be shown to be an excluded operation that
the adjudication provisions were excluded. More broadly, on the facts of the case, the interim
account dispute could not have been related to excluded operations. As excavation works had
not even started, there was never any question of the payments relating to the narrowly-
defined excluded operations in section 105(2).

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51 Engie Fabricom (UK) Ltd v MW High Tech Projects UK Ltd [2020] EWHC 1626 (TCC)
O'Farrell J held that the parties' sub-contract was not a construction contract as the primary
activity was power generation. This meant it fell within the section 105(2) exclusion.
In reaching that decision, she identified the material factors in the case, namely:
• The regulatory framework and policy background.
• The Local Planning Authority's decision, granting planning permission.
• The Environment Agency's grant of an Industrial Emissions Directive (IED) permit.
• Operations on site, having regard to the requirements of the EPC contract (between MW and
Energy Works (Hull) Ltd) and the sub-contract.
• The financial model for the plant, the sources of investment capital and income from the plant.

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English Statutory Construction Adjudication
52 Adjudication has proved to very popular in the United Kingdom since its introduction the
number of disputes has grown steadily to in excess of 2,000 per year and most parties accept
the decision of the adjudicator and pay up with less than 10% of decisions going on to be
enforced or even resolved by arbitration or litigation6
. It has meant less matters being
resolved in the court system or by way of arbitration. The TCC report for the period 2019 to
2020 indicates that only 133 adjudication enforcement hearings took place in that period7
.
53 Criticisms of the current nature have been made in respect to the costs that adjudicators that
can charge which is surely a market for market forces to determine but also the power and
process exemptions which arguably would require government intervention. Lord Justice
Coulson8
has criticised them as have other commentators including the writer of this paper.
54 Whilst Hong Kong may have inspired the use of adjudication in the 1990’s in the United
Kingdom its nature and form has been heavily influenced by the court’s decisions. What has
emerged can arguably be used as an example to Kong Hong what has worked well and what
has not.
55 Statutory Adjudication in England and Wales has evolved over the last twenty three years and
is now described.
56 Any crystallised dispute concerning construction operations9
that are not subject to any
exemptions can be referred to a sole adjudicator that has been appointed by an Adjudicator
Nominating Body or the parties by consent. There are currently around twenty Adjudicator
Nominating Bodies in the United Kingdom, making around 2,000 nominations per year. The
top seven in size of nominations being RICS, TECSA, TECBAR, RIBA, CIARB, ICE and UK
Adjudicators, their nomination fees range from the free nomination service offered by UK
Adjudicators to around £450.00 charged by the RICS. The professional disciplines of those
acting as adjudicators were in 2019 Lawyers 43.4%, Quantity Surveyors 34.8%, Civil
Engineers 7.9%, Architects 6.9%, Construction Consultants 1.8%, CIOB/Builders 1.4% and
those falling into the category of Other 3.8%10
.
57 Procedure wise around 80% of adjudications are held on a documents only basis, with some
hearings and site visits being held as deemed necessary by the adjudicator.
58 The adjudicator reaches their decision within 28 days or such other period as may be granted
by the referring party unilaterally (42 days) or other period if both parties agree to it. Studies
indicate that 53% of decisions were issued within the 28 day statutory period; and 33% were
issued within 42 days, being the period of extension within the referring party’s ‘gift’. The
remaining 14% of decisions that were issued in excess of 42 days from the referral were
issued over a range of periods, from 7 to 20 weeks in total (i.e. an extension of 3 to 16
weeks). On average, those decisions that were issued beyond the 42 day period were issued
within 10.5 weeks of the referral.
6 These are figures are based on the reports by the Adjudication Society from 2015 to 2020
7 Annual Report of the Technology and Construction Court 2019-2020, Judicial Office, London
8 Severfield (UK) Ltd v Duro Felguera UK Ltd (No. 2) [2017] EWHC 3066 (TCC)
9 Bovis Lend Lease Ltd v Trustees of the London Clinic [2009] EWHC 64 (TCC), LJH Paving Ltd v Meeres Civil Engineering Ltd [2019] EWHC 2601,
10 Adjudication Society reports from 2015 to 2020

The English Story
9th
18 | P a g e
59 The adjudicator must comply with the rules of natural justice and failure to do so may render
any decision unenforceable, this requires the adjudicator to consider any defence raised
though the weight given to defences is matter for the adjudicator where information is served
outside of the adjudicator’s directions or late in the adjudication timetable11
. The adjudicator
may on his own initiative or on the application of a party correct his decision so as to remove
a clerical or typographical error arising by accident or omission (paragraph 22A(1)), any
correction of a decision must be made within five days of the delivery of the decision to the
parties (paragraph 22A(2)). As soon as possible after correcting a decision, the adjudicator
must deliver a copy of the corrected decision to each of the parties to the contract (paragraph
22A(3)).Any correction of a decision forms part of the decision (paragraph 22A(4)). The
adjudicator is entitled to his reasonable fees and expenses which studies indicate typically
range from £175.00 to £400.00 per hour12
.
60 Provided the adjudicator has kept within their jurisdiction by answering the question posed
correctly or incorrectly the TCC will enforce their decision by way of summary judgement with
only limited grounds for resisting enforcement that include:
• a material breach of the rules of natural justice.
• lack of jurisdiction
A foreign jurisdiction clause does not prevent adjudication enforcement13
and the court is
willing to sever parts of a decision that can be properly identified and dealt with separately
due to the two above grounds14
.
61 The principles that apply to a stay of enforcement of a judgment given on an adjudicator’s
decision, can be summarised as follows:
(a) Adjudication is designed to be a quick and inexpensive method of arriving at a temporary
result in a construction dispute.
(b) In consequence, adjudicators’ decisions are intended to be enforced summarily and the
claimant (being the successful party in the adjudication) should not generally be kept out of its
money.
(c) In an application to stay the execution of summary judgment arising out of an adjudicator’s
decision, the court must exercise its discretion with considerations (a) and (b) firmly in mind.
(d) The probable inability of the claimant to repay the judgment sum (awarded by the
adjudicator and enforced by way of summary judgment) at the end of the substantive trial, or
arbitration hearing, may constitute special circumstances rendering it appropriate to grant a
stay.
(e) If the claimant is in insolvent liquidation, or there is no dispute on the evidence that the
claimant is insolvent, then a stay of execution will usually be granted.
11 Amec Group Ltd v Thames Water Utilities Ltd [2010] EWHC 419
12 Adjudication Report No. 18, Adjudication Society CDR, December 2019
13 Motacus Constructions Ltd v Paolo Castelli SpA [2021] EWHC 356 (TCC)
14 Willow Corp Sarl v MTD Contractors Ltd [2019] EWHC 1591 (TCC), Aqua Leisure International Ltd v Benchmark Leisure Ltd [2020] EWHC 3511 (TCC),
Dickie & Moore Ltd v McLeish and others [2020] CSIH 38

The English Story
9th
19 | P a g e
(f) Even if the evidence of the claimant’s present financial position suggested that it is
probable that it would be unable to repay the judgment sum when it fell due, that would not
usually justify the grant of a stay if:
(i) the claimant’s financial position is the same or similar to its financial position at the time
that the relevant contract was made; or
(ii) The claimant’s financial position is due, either wholly, or in significant part, to the
defendant’s failure to pay those sums which were awarded by the adjudicator.
(g) If the evidence demonstrates that there is a real risk that any judgment would go
unsatisfied by reason of the claimant organising its financial affairs with the purpose of
dissipating or disposing of the adjudication sum so that it would not be available to be repaid,
then this would also justify the grant of a stay15
.
15 Grosvenor London Limited v Aygun Aluminium UK Limited [2018] EWHC 227 (TCC)

The English Story
9th
20 | P a g e
Suggestions for improvements
62 It is the writer’s personal opinion based on twenty three years experience as a party
representative, expert witness and adjudicator in adjudications in the United Kingdom and
internationally that the English statutory adjudication model works very well but it could be
improved by removing the exemptions found at s105(2) and s106 of the Act. This would
require parliamentary action and government support to alter and given the more pressing
issues of the time is unlikely to happen for some time.16
63 Market forces have forced Adjudicator Nominating Bodies to offer low cost and capped fee
adjudications which have addressed criticism levelled by users of adjudication and has not
needed parliamentary intervention17
.Hong Kong should be wary of following other jurisdictions
that impose set fees and adopt the successful English approach.
Sean Sullivan Gibbs, London England
Hanscomb Intercontinental
sean.gibbs@hanscombintercontinental.co.uk +447722-643816
The views expressed by the author(s) in this paper are theirs alone, and do not necessarily
represent the views of the Society of Construction Law or the editors. Neither the author(s, the
Society, nor the editors can accept any liability in respect of any use to which this paper or
any information or views expressed in it may be put, whether arising through negligence or
otherwise.
16 Politicians claims to be dealing with Brexit and the COVID-19 pandemic
17 TECSA Low Value Dispute (LVD) Adjudication Service, UK Adjudicators Capped Fee Scheme, CIC Low Value Disputes Model Adjudication
Procedure

1
Adjudication—
Tuhinga o Mua, Inaianei & Muri (Past, Present & Future):
The Singapore Story
A paper presented at the 9th
International Society of Construction Law Conference 2021
Joanna Seetoh, LVM Law Chambers LLC
Singapore
4 November 2021
www.constructionlaw2021.com

2
STATUTORY ADJUDICATION IN SINGAPORE: PAST, PRESENT AND FUTURE
A. INTRODUCTION
1. Adjudication proceedings in Singapore are governed by the Building and Construction
Industry Security of Payment Act (Cap 30B), which came into force on 1 April 2005
(“SOP 2004”).
2. Since its enactment, while there have been numerous court decisions which purport to
elucidate the principles of the SOPA, the legislation remained unchanged for more than
a decade, until 2 October 2018 when amendments to the SOPA were passed. These
amendments came into force on 15 December 2019 (“SOP 2018”).
3. It has now been almost two years since SOPA 2018 has come into force, and it would
be opportune to examine the past, present and future of the SOPA regime in Singapore.
4. To that end, three questions will be addressed in this paper:
(a) The Past: Was SOPA 2004 a legislative success?
(b) The Present: What are the key changes in SOPA 2018?
(c) The Future: What lies ahead for the SOPA regime?
B. THE PAST: WAS SOPA 2004 A LEGISLATIVE SUCCESS?
5. Statutory adjudication was introduced in Singapore to address the payment issues
endemic within the construction industry in the wake of Asian Financial Crisis in 1997.
In particular, the economic recession caused severe cash flow issues within the
construction industry, with annual construction demand declining from a peak of S$24
billion in 1997 to about S$10 billion in 2003.1
6. Saddled with reduced cash flow, upstream parties began to financially oppress
downwards parties by failing to pay on time, or failing to pay altogether. This caused a
1
Cedric Foo, Second Reading of the Building and Construction Industry Security of Payment Bill (16 November
2004).

3
domino effect for the rest of the downstream parties, ultimately resulting in delays to the
project, or even the insolvency of these downstream parties.2
7. SOPA 2004 was therefore enacted as a response to this predicament. Modelled after
similar legislation in Australia, the United Kingdom and New Zealand, SOPA 2004
sought to establish a mechanism for expeditious interim enforcement of progress
payments by reference to a fast-track tribunal comprising adjudicator(s) with
considerable experience in the industry.3
8. There is broad consensus that SOPA 2004 has achieved its legislative goal.4
In fact, it
was noted that statutory adjudication has become such a popular means of resolving
disputes that the Singapore Mediation Centre (the institution designated to administer
adjudication proceedings) had administered between 400 to 500 cases each year in
recent years.5
9. However, a decade and numerous hard-fought court battles later, it became
increasingly evident to industry players that several aspects of SOPA 2004 are in need
of legislative review. Notably, Judicial Commissioner Kannan Ramesh (as he was then)
stated the following6
:
“[SOPA 2004] has been bedevilled by litigation which has sought to open up fissures,
fault-lines and crevices in its edifice. At first blush, the issues canvassed would appear
uncontroversial, settled by the language of the Act. But closer examination leads to a
different conclusion. The present application is an apt illustration. It cannot be gainsaid
that the proliferation of such litigation is the very antithesis of the raison d’etre of the
Act – speedy and cost-efficient recovery of progress payments. The time is perhaps
ripe to re-assess the Act, iron out its wrinkles and creases, so that its language and
purpose achieve better alignment.” (emphasis added)
10. In response to these calls for legislative reform, the Singapore Parliament passed the
SOPA Amendment Bill in late 2018, with the primary aim of expanding and clarifying the
scope of SOPA 2004.7
2
Newcon Builders v Sino New Steel [2015] SGHC 226 (Singapore High Court) at [35]. See also the Foreword
by the Honourable Lee Seiu Kin in Chow Kok Fong, Security of Payments and Construction Adjudication (1st
Edition, 2005).
3
Ibid.
4
See, for instance, the Foreword by the Former Honourable Chief Justice Chan Sek Keong in Chow Kok Fong,
Security of Payments and Construction Adjudication (2nd
Edition, 2013) at [6], Singapore Academy of Law
Law Reform Committee, Proposals for Amending the Building and Construction Security of Payment Act
(September 2015) at [6] – [11], and Chow Kok Fong et al., Amendments to the SOP Act (Sweet & Maxwell,
2019) at [1.001] – [1.002].
5
Chow Kok Fong et al., Amendments to the SOP Act (Sweet & Maxwell, 2019) at [1.002].
6
Libra Building Construction v Emergent Engineering [2016] 1 SLR 481 (Singapore High Court) at [1].
7

4
C. THE PRESENT: WHAT ARE THE KEY CHANGES IN SOPA 2018?
11. The changes in SOPA 2018 are fairly extensive. For the purposes of brevity, however,
we examine in this paper three key changes in SOPA 2018, namely the:
(a) adjustment to the time for service of payment claims;
(b) clarification of the payment response regime; and
(c) codification of the grounds for setting aside adjudication determinations.
(i) Adjustment to the time for service of payment claims
12. The relevant provisions under SOPA 2004 and SOPA 2018 are set out below:
SOPA 2004, s. 10(2)
(2) A payment claim shall be served —
(a) at such time as specified in or determined
in accordance with the terms of the contract;
or
(b) where the contract does not contain such
provision, at such time as may be prescribed.
SOPA 2018, ss. 10(2)(a) and 10(2A)
(2) A payment claim must be served — (a) not
later than —
(i) the date, or the last day of a period,
specified in, or determined in accordance
with, the terms of the contract relating to the
purpose of this subsection; or
(ii) the date prescribed for the purpose of this
subsection if the contract does not contain
such terms.
(2A) In subsection (2) —
(a) a payment claim that is served before the
date or last day mentioned in subsection
(2)(a)(i) is deemed to have been served on
that date or day, as the case may be; and
(b) a payment claim that is served before the
prescribed date mentioned in subsection
(2)(a)(ii) is deemed to have been served on
that date.

5
SOPA 2004
13. The Singapore courts have generally required strict compliance with Section 10(2) of
SOPA 2004, holding that a breach of Section 10(2) would immediately invalidate an
adjudication application.8
14. This is illustrated in Audi Construction v Kian Hiap Construction (“Audi”), where the
subcontract provided for the subcontractor to serve its payment claim on the 20th
of each
calendar month. The subcontractor however purported to serve its payment claim on 18
November 2016, as 20 November 2016 fell on a Sunday which was a non-working day.
15. The Singapore High Court held that a payment claim served on the 18 November 2016
was invalid. In that regard, the court reviewed a series of past cases and held that “the
ordinary and natural meaning of [the subcontract] is that the event [i.e. the service of
payment claims] is to take place on that day and not on any other day, neither sooner
nor later”.9
SOPA 2018
16. The Singapore courts’ requirement of strict compliance with Section 10(2) of SOPA
2004 presented an unenviable situation where a claimant with a perfectly good claim
could be shut out from monies due and owing to it simply by reason of a technical breach
of SOPA 2004. The inequities seemed stark, and this led to the enactment of a “deeming
provision” for the service of payment claims in the new Section 10(2A) of SOPA 2018.
17. Pursuant to the new Section 10(2A), where a payment claim is served early (i.e., before
the date for service as stipulated in the contract), that payment claim would be “deemed”
to have been served on the date prescribed in the contract. Such an approach is
eminently sensible and fair, as it would preclude a respondent from withholding monies
legitimately due to a claimant by reason of a mere technical breach. Indeed, it is difficult
to contemplate a situation whereby a claimant’s payment claim will be served out of time
following the amendments in SOPA 2018.
(ii) Clarification of the payment response regime
8
Audi Construction v Kian Hiap Construction [2018] 1 SLR 317 (Singapore Court of Appeal) at [21].
9
Audi Construction v Kian Hiap Construction [2017] SGHC 165 (Singapore High Court) at [9]. For
completeness, the Singapore High Court’s decision in Audi was overturned by the Singapore Court of Appeal,
which held that the claimant had “good reason” for effecting service before 20 November 2016, being that
that day was a Sunday and that the respondent’s office was closed. Further, the claimant had made clear
that, notwithstanding the earlier service of the payment claim, the operative date of the payment claim
remained as 20 November 2016.

6
SOPA 2004, s. 15(3)
(3) The respondent shall not include in the
adjudication response, and the adjudicator
shall not consider, any reason for withholding
any amount, including but not limited to any
cross-claim, counterclaim and set-off, unless
—
(a) where the adjudication relates to a
construction contract, the reason was
included in the relevant payment response
provided by the respondent to the claimant; or
(b) where the adjudication relates to a supply
contract, the reason was provided by the
respondent to the claimant on or before the
relevant due date.
SOPA 2018, ss. 15(3) and 15(3A)
(3) Subject to subsection (3A), the respondent
must not include in the adjudication response
an objection of any nature, unless —
(a) where the adjudication relates to a
construction contract, that objection was
included in the relevant payment response
provided by the respondent to the claimant; or
(b) where the adjudication relates to a supply
contract, that objection was raised by the
respondent to the claimant in writing on or
before the relevant due date.
(3A) Despite subsection (3), the respondent
may include in the adjudication response an
objection mentioned in subsection (3) if —
(a) in the case of an adjudication that relates
to a construction contract —
(i) the circumstances of that objection only
arose after the respondent provided the
relevant payment response to the claimant; or
(ii) the respondent could not reasonably have
known of the circumstances when providing
the relevant payment response to the
claimant; or
(b) in the case of an adjudication that relates
to a supply contract —
(i) the circumstances of that objection only
arose after the relevant due date; or
(ii) the respondent could not reasonably have
known of the circumstances by the relevant
due date.
SOPA 2004
19. Despite the express wording in Section 15(3) of SOP 2004 which prohibits respondents
from relying on reasons for withholding payment which were not in their payment
responses, it was frequently argued that Section 15(3) of SOP 2004 did not extend to
jurisdictional objections.
20. This argument found favour with several adjudicators10
, but not with others, thereby
leading to a host of inconsistent decisions. Indeed, it was only in 2016, some 11 years
after the enactment of SOPA 2004, that the Singapore Court of Appeal clarified the
10

7
position on this issue. It held in Grouteam v UES Holdings that parties were not
permitted to raise jurisdictional objections unless they were raised at the “earliest
possible opportunity”, being the payment response.11
SOPA 2018
21. The Singapore Court of Appeal’s interpretation of Section 15(3) of SOP 2004 is now
codified in SOPA 2018. In his speech when moving the Amendment Bill, Minister Zaqy
Mohamed explained that the amendments in SOP 2018 “will make clear that any
belated objections by respondents will be disregarded by adjudicators or the Courts,
unless respondents can prove their objections could not have been made earlier”.12
22. To that end, the previous expression “reason for withholding” is now replaced with
“objection of any nature” in SOPA 2018. It is therefore clear that Sections 15(3) and
15(3A) of SOPA 2018 apply to both the substantive merits of the payment claim as well
as any jurisdictional and/or procedural objections.
23. On a related note, Section 17(4A)(c) of SOPA 2018 also codifies a caveat to the general
principle that a respondent must raise its substantive, jurisdictional and/or procedural
objections in its payment response or forever hold its peace. The caveat is this – a
respondent may raise patent errors on the face of the material to contend that the
payment claim should not be allowed in part or at all, notwithstanding that such objection
was not raised in its payment response.13
24. The effect of these new provisions in SOPA 2018 is that a respondent will have recourse
to a very limited suit of objections should it choose not to issue a payment response, or
if its payment response is bereft of reasons as to why it seeks to withhold monies from
the claimant. This is no doubt a boon for claimants. Practically speaking, claimants
would be better apprised of the respondents’ substantive and/or jurisdictional objections
upon receipt of the payment response. This would allow the claimant to be better
prepared to address the same in the adjudication proceedings, or alternatively the
option to rectify any purported invalidity of its payment claim by issuing a fresh payment
11
Grouteam v UES Holdings [2016] 5 SLR 1011 (Singapore Court of Appeal) at [64], [65]. This holding was
affirmed in the Singapore Court of Appeal’s decision of Audi Construction v Kian Hiap Construction [2018] 1
SLR 317 (Singapore Court of Appeal) at [6].
12
Second Reading Speech by MOS Zaqy Mohamad on the Building and Construction Industry Security of
Payment (Amendment) Bill, 2 October 2018.
13
Comfort Management v OGSP Engineering [2018] 1 SLR 979 (Singapore Court of Appeal) (”Comfort
Management”) at [81]. It is also worth noting that Section 2 of SOPA 2018 has also directly imported Steven
Chong JA’s definition of “patent errors” from paragraph [22] of Comfort Management, i.e., an error that is
obvious, manifest or otherwise easily recognisable on the face of the payment claim.

8
claim. In doing so, this potentially saves parties the time and costs of proceeding with
an adjudication on the basis of an invalid payment claim.14
(iii) Codification of the grounds for setting aside an adjudication determination
SOPA 2004, s. 27(5)
(5) Where any party to an adjudication
commences proceedings to set aside the
adjudication determination or the judgment
obtained pursuant to this section, he shall pay
into the court as security the unpaid portion of
the adjudicated amount that he is required to
pay, in such manner as the court directs or as
provided in the Rules of Court (Cap. 322, R
5), pending the final determination of those
proceedings
SOPA 2018, ss. 27(5) and 27(6)
(5) Where any party to an adjudication
commences proceedings to set aside the
adjudication determination or the judgment
obtained pursuant to this section, he shall pay
into the court as security the unpaid portion of
the adjudicated amount that he is required to
pay, in such manner as the court directs or as
provided in the Rules of Court (Cap. 322, R
5), pending the final determination of those
proceedings.
(6) The grounds on which a party to an
adjudication may commence proceedings
under subsection (5) include, but are not
limited to, the following:
(a) the payment claim was not served in
accordance with section 10;
(b) the claimant served more than one
payment claim in respect of a progress
payment, otherwise than permitted under
section 10;
(c) the payment claim was in respect of a
matter that has already been adjudicated on
its merits in proceedings under this Act;
(d) the adjudication application or the
adjudication review application was not made
in accordance with the provisions of this Act;
(e) the adjudicator failed to comply with the
provisions of this Act in making the
adjudication determination;
(f) the adjudication determination requires the
claimant to pay an adjudicated amount to the
respondent;
(g) a breach of the rules of natural justice
occurred in connection with the making of the
adjudication determination;
(h) the making of the adjudication
determination was induced or affected by
fraud or corruption.
14
This was one of the legislative aims of Section 15(3) of SOPA 2004, as noted by the Singapore Court of
Appeal in Audi Construction v Kian Hiap Construction [2018] 1 SLR 317 (Singapore Court of Appeal) at [69].

UK Adjudicators Newsletter December 2021

UK Adjudicators Newsletter December 2021

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