UK Adjudicators April 2020 Newsletter

WWW.UKADJUDICATORS.CO.UK
APRIL 2020 NEWSLETTER
1 | P a g e
EDITORS COMMENTS
The Construction Industry Council Low Values
Disputes Model Adjudication Procedure (CIC
LVD MAP) launch on the 18 March 2020 at the
RICS has been postponed due to the
Coronavirus epidemic. We will provide further
information when it becomes available
The 2020 Edinburgh Adjudication &
Arbitration Conference took place on Friday
the 6th March in Edinburgh. Despite
cancellations due to the Coronavirus over fifty
delegates attended.
The 2020 London Adjudication & Arbitration
Conference will hopefully take place on the 20
August at the IET in central London. If you
would like to attend, speak, support, sponsor
or exhibit please get in touch to express your
interest. We have a much larger venue being
lined up for the 2020 venue as we reached
our capacity limits in the last venue.
UK Adjudicators were a supporting
organisation for the Dispute Resolution Board
Conference that was to take place in Cape
Town, South Africa in May 2020, this been
postponed until 2021.
As always, I would encourage you to forward
articles, commentaries, news and events that
our readers would find of interest and share
details of our panel and nomination service
with friends, colleagues and clients.
During this period of self isolation and social
distancing we are able to maintain our
nomination services and trust that our panel
members will utilise technology to conduct
virtual hearings where necessary.
If you can organise a webinar please do get in
touch as we intend putting on a number
during this period of isolation and distancing.
I sincerely hope that you and your families
remain safe during the crisis and encourage
you to follow governmental advice and
updates.
Sean Gibbs LLB(Hons) LLM MICE FCIOB FRICS
FCIARB, is a director with Hanscomb
Intercontinental and is available to serve as an
arbitrator, adjudicator, mediator, quantum
expert and dispute board member.
sean.gibbs@hanscombintercontinental.co.uk

2 | P a g e
COURT OF APPEAL WIN FOR
STEVEN WALKER QC IN PBS
ENERGO AS V BESTER GENERACION
UK LTD [2020] EWCA CIV 404
Steven Walker QC was successful in the Court
of Appeal on behalf of the defendant Bester
Generacion, in an appeal by PBS Energo
against the decision of Pepperall, J (“the
judge”) in PBS Energo A.S. v Bester Generacion
UK Ltd [2019] EWHC 996 (TCC) [2019] BLR 350
which rejected the appellant’s claim for
summary judgment made to enforce the
decision of an adjudicator in 2018.
The case arose from a disputed termination of
a FIDIC contract and the judge had refused to
enforce an earlier adjudicator’s decision on
grounds that there was an arguable case that
the decision had been procured by fraud.
The appellant sought permission to appeal on
four grounds.
Ground 1: The judge erred in concluding that
the allegations of fraud were relevant to the
adjudicator’s decision
Ground 2: The allegations of fraud
could/should have been raised in the
adjudication
Ground 3: The judge should have found that,
because the respondent had not filed a
defence alleging fraud, the allegations of
fraud were not open to the respondent
Ground 4: The judge had failed to distinguish
between granting summary judgment and
enforcing judgment. He ought to have granted
summary judgment, even if he had then
stayed some or all of that judgment.
Permission to appeal was given in relation to
grounds 3 and 4 only.
In rejecting ground 3, the Court of Appeal
examined the procedural point raised by the
appellant. The CPR provision provides that
where there is an application for summary
judgment (such as an application envisaged by
the TCC Guide), no pleaded defence is
necessary. Rule 24.4(2) states that “If a
claimant applies for summary judgment
before a defendant against whom the
application is made has filed a defence, that
defendant need not file a defence before the
hearing”.
No authorities existed to the contrary nor did
it appear that the pleading point had ever
arisen previously in adjudication enforcement
cases. Lord Justice Coulson therefore
concluded that: “although a defendant

3 | P a g e
seeking to resist the summary enforcement of
an adjudicator’s decision by raising an
allegation of fraud may be well-advised to
plead a defence (as happened in Gosvenor1),
the pleading and service of such a defence is
not a condition precedent which has to be
fulfilled before the defendant can rely on such
an allegation.”
In dismissing the appeal Lord Justice Coulson
also concluded: “Moreover, in a case where
substantial allegations of fraud are found to
be arguable, the right course will usually be
the one taken by the judge, namely to refuse
summary judgment. In such a case, no
question of a stay of execution then arises.
Further and in any event, the final
determination of the issues by Cockerill J in
favour of the respondent2 provides a separate,
stand-alone reason why the adjudicator’s
decision cannot now be enforced.”
The case concerned a biomass energy plant to
be located near Wrexham. Equitix employed
Bester to design, construct and install the
plant as the EPC Contractor. Bester employed
PBS as sub-contractor.
Steven Walker QC and Tom Owen – instructed
by Watson, Farley and Williams LLP (Rebecca
Williams, Partner and Co-Head of the London
Dispute Resolution Group) – for the
Respondent.
To read the full judgment please click here:
PBS Energo AS v Bester Generacion UK Ltd
[2020] EWCA Civ 404.
19 March 2020
1Gosvenor London Ltd v Aygun Aluminium UK
Ltd [2018] EWCA Civ 2695
2See PBS Energo AS v Bester Generacion UK
Ltd & Anor [2020] EWHC 223 (TCC).
Steven Walker QC
sjwalker@atkinchambers.com
Justin Wilson - Senior Clerk
Tel:+44 (0)20 7400 8504
jwilson@atkinchambers.com

4 | P a g e
PRIVILEGE REPURPOSED: LEGAL
ADVICE PRIVILEGE, THE DOMINANT
PURPOSE TEST AND R(JET2) V CAA
(2020)
Summary
On 28 January 2020, the Court of Appeal
delivered its important judgment in Jet2 (R.
(on the application of Jet2.com Ltd) v Civil
Aviation Authority [2020] EWCA Civ 35),
confirming the “dominant purpose test” for
legal advice privilege.
In this article, Rob Hammond addresses the
practical guidance and significant
consequences of the new test for the oft-
difficult issues of privilege in modern legal
communications.
Facts and Issues
In 2017 and 2018 the Civil Aviation Authority
(“CAA”) published a press release and
correspondence concerning Jet2’s refusal to
join the CAA consumer dispute resolution
scheme. Jet2 sought to challenge the CAA’s
publications by judicial review.
In those proceedings, Jet2 applied for the
disclosure of emails concerning the CAA’s
internal response to Jet2’s complaint
following the press announcement. They also
sought the drafts of the CAA’s subsequent
reply to Jet2. The CAA refused disclosure on
the grounds of legal advice privilege (“LAP”).
The emails and drafts involved multiple
recipients, some of whom were in-house
lawyers. Nonetheless, a later witness
statement, relied on by the CAA, voluntarily
disclosed a privileged email from the relevant
period.
At first instance, Morris J held that large
portions of the documents in dispute were
not privileged. In a subsequent hearing, he
concluded that by its later voluntary
disclosure, the CAA had lost privilege in the
remaining documents by collateral waiver.
The CAA appealed both decisions on the
following grounds:
The judge wrongly concluded that LAP is
subject to a “dominant purpose test”: i.e. that
the communication or document was brought
into existence for the dominant purpose of
giving or seeking legal advice;
In applying that test, the judge erred in his
approach to multi-addressee communications
sent to both lawyers and non-lawyers;
The judge erred in holding that emails and
their attachments must be considered
separately for the purposes of determining
privilege; and,

5 | P a g e
The judge erred in his approach to collateral
waiver.
The Court of Appeal’s Decision
LAP and Dominant Purpose
Hickinbottom LJ identified five propositions
going to LAP, summed up at [69]:
LAP applies to in-house lawyers [44];
LAP will continue to apply to communications
disseminating, considering or applying
privileged advice internally [45];
Third-party information passed to a solicitor
will not usually attract LAP [46];
The client is defined narrowly as those in a
company authorised to seek and receive legal
advice. Material collected by a client from
third parties or independent agents for the
purpose of instructing lawyers to advise is not
subject to LAP. Hickinbottom LJ expressed his
grave regret that the House of Lords in Three
Rivers (No. 5) was binding in this regard [48,
57];
Legal advice must be given in a “legal context
(the first limb)” but is otherwise “widely
defined (the second limb)” [60]; and,
Crucially, he strongly disagreed with the
obiter remarks of the Court of Appeal in SFO
v. ENRC [2018] EWCA Civ. 2006 (“Eurasian”)
which refused to approve the “tautologous”
dominant purpose test. After a lengthy
exposition of the law, he held that LAP is
subject to a dominant purpose test in English
law.
LAP and Multi-Addressee Communications
Hickinbottom LJ’s approval of the dominant
purpose test was dispositive of this ground to
a large extent. The CAA recognised that many
of the emails sent to non-lawyers and in-
house counsel could not be privileged on that
ground.
However, Hickinbottom LJ held the approach
to LAP in multi-addressee communications is
as follows [100]:
The role of the lawyer is a useful starting
point, but the test must be applied on a
document by document basis;
When determining the purpose of a
document, the wide scope of “legal advice”
and the concept of the “continuum of
communications” must be considered;
Responses from lawyers containing legal
advice will almost certainly be privileged;
Each recipient in a group email should be
treated as if receiving a separate email. A rule
of thumb will be to consider whether, if sent
to the lawyer alone, a document would be
privileged. If so, one must then ask whether

6 | P a g e
any emails sent to the non-lawyers are also
privileged, e.g. because the email is a
dissemination of legal advice. The test
nonetheless remains one of dominant
purpose; and,
Meetings are subject to the same
considerations. Legal advice given at meetings
is privileged, but the mere presence of a
lawyer is insufficient to cloak a commercial
meeting with privilege. As above, the test
remains one of dominant purpose.
Applying this approach, Hickinbottom LJ held
that the CAA’s voluntarily disclosed email was
not privileged.
Separate Consideration of Emails and
Attachments
Hickinbottom LJ relied on the established
principle that non-privileged documents
cannot acquire privilege simply by being sent
to lawyers: Imerman v Tchenguiz [2009]
EWHC 2901 at [14]. On that basis, separate
analysis must be given to substantive
documents and their attachments. Given that
attachments may have been “received or
created by the sender, [they] may require
discrete considerations” when assessing LAP
[107].
Collateral Waiver
Given his finding on Ground 2, Hickinbottom
LJ’s reasoning on collateral waiver is obiter.
Hickinbottom LJ concluded that the purpose
of collateral waiver is to secure fairness by
preventing misleading partial disclosures
[111].
Disclosure must therefore be made in respect
of the entire “transaction” to which the
documents voluntarily disclosed relate [113].
The court will construe that transaction
objectively [114]. In this regard, the purpose
and nature of the voluntary disclosure is
crucial to issues of unfairness and the breadth
of the transaction [118,119].
In Jet2, “the relevant transaction so far as the
voluntary disclosure is concerned [was]
restricted to the 24 January 2018 email itself.
Fairness [did] not require more” [120], “it
[could not] be right that such a modest
[purpose and] voluntary disclosure could
result in collateral waiver of all the internal
communications” [119].
Practical Impact of the Case
Since its inception, the doctrine of privilege
has been beset with complexity. Hickinbottom
LJ’s judgment adds real clarity to the law of
privilege in four ways:
Firstly, Jet2 confirms that the dominant
purpose test applies to both LAP and litigation
privilege. This is important in the context of
the modern legal profession, where the
purpose of a document will often be unclear.
For example, non-lawyer experts are

7 | P a g e
increasingly involved in legal matters; more
lawyers are moving in-house, fulfilling both
commercial and legal roles; large non-law
corporations, such as the Big Four
accountancy firms are entering the legal
market; and there is a greater expectation
that law firms will provide non-legal,
wraparound services. These trends have made
assessing LAP more difficult. This is especially
true for the large document reviews now
demanded by litigation, investigations and
regulatory work. Focus on the dominant
purpose test should bring greater clarity to
this area.
The test also brings English law into comity
with other common law jurisdictions in
Australia, Singapore and Hong Kong. This will
benefit international law firms servicing those
markets, and other firms providing
international advice. Put simply, harmonised
doctrines of privilege reduce complexity and
the risk of inadvertent waiver of privilege in
multinational communications.
Secondly, this is a thoroughly practical
judgment. Where other cases have failed to
do so, it deals with the reality of assessing
privilege in daily practice:
Lawyers will be familiar with convoluted email
chains, involving multiple recipients, some of
whom are non-lawyers. Hickinbottom LJ was
alive to this, stating that previous cases “fail
to take into account the possibility that a
communication to a lawyer to obtain legal
advice may be part of a multi-addressee email
which also seeks advice/input from non-
lawyers” [89(iii)]. At [100], the judgment
contains a thorough nine sub-paragraphs of
guidance on the issue.
After the first instance decision, the CAA’s
internal lawyers had struggled to determine a
practical approach to documents that
disclosed the nature of legal advice.
Hickinbottom LJ’s judgment at [101] is clear:
such documents must be considered against
the whole context of the case, but it is
unnecessary that legal advice is specifically
requested therein.
As above, at [108] the judgment also provides
express guidance on the approach to be taken
in privilege reviews of emails and their
attachments, which must be considered
separately from one another.
Thirdly, the decision heaps more pressure on
the House of Lords’ anachronistic definition of
“client” in Three Rivers (No.5). LAP is a
privilege, the scope of which must be carefully
limited: [55]. However, the present control
mechanism of the narrowly defined client is
injurious to large corporations. As Sir Geoffrey
Vos C rightly recognised in Eurasian, at [127]:
“[L]arge corporations need, as much as small
corporations and individuals, to seek and
obtain legal advice without fear of intrusion.

8 | P a g e
[…] If a multi-national corporation cannot ask
its lawyers to obtain the information it needs
to advise that corporation from the
corporations employee’s with relevant first-
hand knowledge, under the protection of
[privilege], that corporation [is
disadvantaged…] Whatever the rule is, it
should be equally applicable to all clients,
whatever size or reach.
Judgment from the Supreme Court will be
required to overturn Three Rivers (No. 5).
However, the recognition of the dominant
purpose test may provide a fairer and more
effective limitation of LAP, for future courts to
apply.
Finally, the case provides a welcome (albeit
obiter) reminder of the dangers posed by the
doctrine of collateral waiver. Tactical
consideration must be given to the ambit of
the relevant “transaction” in respect of which
disclosure is volunteered, and careful
attention paid to the “purpose and nature” of
the voluntary disclosure.
This content is provided free of charge for
information purposes only. It does not
constitute legal advice and should not be
relied on as such. No responsibility for the
accuracy and/or correctness of the
information and commentary set out in the
article, or for any consequences of relying on
it, is assumed or accepted by any member of
Chambers or by Chambers as a whole.
David Lewis QC
QC: 2019
Year of call: 1997
E: david.lewisqc@hardwicke.co.uk
D: +44 (0)20 7242 2523
Rob Hammond - Pupil
Year of call: 2018
E: rob.hammond@hardwicke.co.uk
T: +44 (0)20 75248 5632

9 | P a g e
C SPENCER LIMITED V M W HIGH
TECH PROJECTS UK LIMITED [2020]
EWCA CIV 331 – THE RELATIONSHIP
BETWEEN HYBRID CONTRACTS AND
VALID PAYMENT NOTICES
The Housing Grants, Construction and
Regeneration Act 1996 created hybrid
contracts, and with that, complications as to
the relationship between these contracts and
the Act. In the significant case of C Spencer
Limited v M W High Tech Projects UK Limited
[2020] EWCA Civ 331, Lord Coulson clarifies
whether a valid payment notice ought to
separately identify the sum due in respect of
construction operations.
Facts
Section 104(5) of the Housing Grants,
Construction and Regeneration Act 1996
(“Act”) provides that ‘where an agreement
relates to construction operations and other
matters, this Part applies to it only so far as it
relates to construction operations.’ Section
105(1) of the Act sets out the types of
‘construction operations’ that will fall subject
to the provisions of the Act. Section 105(2)(c)
of the Act sets out ‘non-construction
operations’ that are exempt from the
provisions of the Act, despite the nature of
the works.
By a sub-contract dated 20th November 2015
(“the sub-contract”), the appellant (“CSL”)
was engaged by the respondent (“MW”) to
design and construct the civil, structural and
architectural works for completion of the
facility.
The main elements of the sub-contract works
were construction operations, within the
definition of section 105(1) of the Act.
However, the works also included the
assembly of plant, and erection of steelwork
to provide support or access to plant and
machinery, which are expressly excluded from
the Act pursuant to section 105(2)(c). This was
thus a hybrid contract.
Until almost the end of the work on site, the
parties operated the payment provisions of
the sub-contract without any regard to the
definition of construction operations in
section 105 of the Act, or any perceived need
to identify separate sums for construction and
non-construction operations.
There was a dispute between the parties in
respect of an interim payment sum. Due to
MW previously drawing a distinction between
construction and non-construction operations
in a previous application, CSL made a separate
application for payment for construction
operations. However, in keeping with all

10 | P a g e
previous notices, the breakdown of MW’s
payment notice did not allocate any sums by
reference to construction operations only.
Thus, CSL claimed that MW’s payment notice
was not a valid payment notice because it did
not allocate a sum for construction operations
only.
The issue was in the case of hybrid contracts,
for construction and non-construction
operations, does a valid payment notice
require the separate identification of the sum
due in respect of construction operations
only?
CSL argued that the words of section 104(5)
(“only so far as it relates to construction
operations”) had to be read into every section
and sub-section of the Act concerned with
payment, namely sections 109-111. A failure
to specify, within the overall sum notified, the
amount that related to construction
operations only, was a failure to comply with
the Act. [para 34]
MW submitted that there was no need to
read into the subsequent sections of the Act,
and to do so would result in confusion,
complexity and additional cost. MW
contrasted the payment provisions with the
adjudication provision in the sub-contract,
which did expressly make the distinction
between construction and non-construction
operations. [para 35]
First Instance Decision
O’Farrell J found that a payment notice that
does not separately state the sums due in
respect of the construction operations is still
capable of constituting a valid notice. Four
reasons were given for this decision:
First, the express words of the Act do not
stipulate separate identification of the sums
due in respect of construction operations.
Secondly, it is open to the parties to agree a
payment scheme for non-construction
operations that sits alongside the statutory
provisions should they choose to do so.
Thirdly, where separate payment machinery
applied, it would be necessary to distinguish
construction operations from non-
construction operations in respect of each
application notice and payment notice.
However, such difficulty would not arise
where the same provisions applied to both
construction and non-construction
operations, whether by way of statutory
requirement or contractual obligation.
Fourthly, a payment scheme that complies
with, or mirrors, the statutory scheme in
respect of both construction and non-
construction operations is a pragmatic
solution to the illogical and uncommercial
impact of the Act creating hybrid contracts.

11 | P a g e
Court of Appeal Decision
The Court of Appeal agreed with O’Farrell J’s
decision largely for the reasons given. The
Court first assessed the sub-contract and
emphasised that “there was nothing in the
terms of the sub-contract which required
either side to differentiate in their payment
notices or payless notices between the sums
notified for construction operations, and the
sums notified for non-construction
operations.” [para 37]
Assessing the Act next, the Court stated that
the Act created hybrid contracts, but it does
not provide that a hybrid contract must
contain a term requiring the separate or
distinct notification and breakdown of sums
due in respect of construction operations
only. [para 43]
For example, section 110A contains clear
stipulations as to what the relevant payment
notices must contain. It specifies that the
payment notice must identify the sum due
and the basis on which that sum has been
calculated. There are no other requirements.
[para 46]
Despite the fact that section 104(5) of the Act
states it only applies “so far as it relates to
construction operations”, the parties were
perfectly permissible to agree payment terms
which complied with the Act in respect of
both construction and non-construction
operations. Section 104(5) does not prevent
the parties from ‘contracting in’, if that is also
what they choose to do. It would therefore be
contrary to section 104(5) to use it as a means
of restricting the parties’ rights and liabilities.
[para 51]
The Court compared clause 44.1 (“the
adjudication clause”) in the sub-contract to
the payment provisions. As Lord Coulson
stipulated at paragraph 55: “The adjudication
clause recognised that this was a hybrid
contract and made plain that the adjudication
provisions only related to referrals in respect
of construction operations. The same
limitation could have been included in the
payment provisions of the sub-contract but
was not. That indicates that the parties were
content to rely on the payment provisions
derived from the Act in respect of both
construction and non-construction operations,
but that in respect of the dispute resolution
mechanism, they were limiting the
adjudication provision to disputes in respect of
construction operations only.” Thus, the
payment notice involving both construction
and non-construction operations was valid.
The Court demonstrated the difference
between this case and the first round of
Severfield (UK) Ltd v Duro Felguera UK Limited
[2015] EWHC 2975 (TCC), where the express
terms in respect of the construction
operations did not comply with the Act, and
were amended to the relevant terms of the

12 | P a g e
Scheme for Construction Contracts, thereby
creating two separate payment regimes. Lord
Coulson stated that it would be “absurd” if
two separate payment regimes had to be
created here when a single, compliant
payment regime had been agreed by the
parties. [para 60]
The Act had two main purposes; (1) to
improve cash flow in the construction industry
and (2) streamline its dispute resolution
process. The former aim was achieved
through mandatory provisions relating to
interim payments, payment notices and the
like, and the latter through a new, compulsory
scheme of construction adjudication. The
Court of Appeal’s decision is in accordance
with the first purpose because it upheld “the
validity of stage payments for the totality of
the works under this hybrid contract,
regardless of whether they were for
construction or non-construction operations.”
[para 61]
The Act also aimed at greater certainty and
greater transparency in relation to such stage
payments. As Lord Coulson stated at
paragraph 62: “Certainty and transparency
are achieved if the stage payment is a single
sum based on a monthly valuation or, as here,
on the achievement of a particular milestone.
Neither the payer not the payee wants to end
up in the position of the parties in Severfield,
with two separate processes, subject to
different procedural requirements, to produce
two separate sums.”
Commentary
The Court found a critical difference between
the payment terms and adjudication
provision, in that the adjudication provision
related to referrals for construction
operations only, whilst the payment scheme
made no such limitation. Without such
express limitation in the sub-contract, the Act
permits a valid payment scheme for
construction and non-construction
operations. The burden of proof is on the
defending party to demonstrate that the
payment terms exclude non-construction
operations.
It is a different situation if the adjudication
clause did not specify whether referrals can
include non-construction operations, as it is
for the claiming party to demonstrate that an
adjudicator appointed to deal with disputes
about non-construction operations has
jurisdiction
to do so (see Ramsey J in Cleveland Bridge
(UK) Limited v Whessoe-Volker Stevin Joint
[2010] EWHC 1076 (TCC)).
Should parties want to have separate
payment provisions, for whatever reason,
they should expressly state in the payment
terms that it relates to construction
operations only. However, unless there is a

13 | P a g e
specific reason for having two separate
payment provisions, it would be prudent for a
payment scheme of non-construction
operations to mirror the provisions of the Act.
The Court considered the practical and
commercial implications of dealing separately
with construction and non-construction
operations for every interim payment
application, stipulating this would “create
additional layers of complexity and cost.”
[para 63]
As Lord Coulson stated at paragraph 41 of C
Spencer, applying the Act to non-construction
operations appears to be commonplace in the
standard forms of sub-contracts in the
construction industry and “is a practical way
around at least some the complications
introduced by hybrid contracts.” Thus, with
respect to payment schemes, C Spencer is an
indication that it is best practice to follow the
provisions of the Act for all works of hybrid
contracts. Following this, there is no reason
why non-construction operations should not
also relate to referrals to adjudication. The
freedom of contract would not be hindered,
as the parties can still contract on terms
which they agree between themselves, but
with the advantage of having certain
minimum provisions in place.
This content is provided free of charge for
information purposes only. It does not
constitute legal advice and should not be
relied on as such. No responsibility for the
accuracy and/or correctness of the
information and commentary set out in the
article, or for any consequences of relying on
it, is assumed or accepted by any member of
Chambers or by Chambers as a whole.
Sally Wollaston
Business Development Director
D 020 7691 0124
E sally.wollaston@hardwicke.co.uk
http://www.hardwicke.co.uk
Hardwicke, Hardwicke Building,
New Square,
Lincoln’s Inn,
London
WC2A 3SB; DX: LDE 393
T +44 (0)20 7242 2523
F +44 (0)20 7691 1234

14 | P a g e
THE LIMITATION PERIOD UNDER
S.14(4)(B) OF THE SECURITY OF
PAYMENT ACT
Levi Pty Ltd v Z&H Building Developments
Pty Ltd & Anor. [2019] VSC 633
The Facts
In Levi Pty Ltd v Z&H Building Developments
Pty Ltd [2019] VSC 633, the subcontractor
made a payment claim under the Building and
Construction Industry Security of Payment Act
2002 (Vic) for works totaling $67,906.03 with
respect to the reference date of 28 July 2018
(the August Claim).
It appears that the head contractor did not
pay the August Claim. The subcontractor
made a further payment claim under the Act
for the same works totaling $67,906.03 with
respect to the next reference date of 28
August 2018 (the September Claim). In this
claim, the subcontractor also claimed $17,053
for retention.
It appears that the head contractor again
failed to pay the claim and on 28 December
2018, the subcontractor served a further
payment claim including the amounts claimed
in the September Claim (the December
Claim). The subcontractor alleged that it had
performed additional works after 28
November 2018 so as to trigger a further
reference date on 28 December 2018.
The head contractor alleged that the last date
upon which the subcontractor was entitled to
claim the amount of $67,906.03 was 28
October 2018 (28 July 2018 + 3 months) and
the last date upon which it was entitled to
claim the amount of $17,053 was 28
November 2018 (28 August 2018 + 3 months).
The subcontractor applied for adjudication of
the dispute after the respondent failed to pay
the December Claim and the adjudicator
found for the subcontractor in the amount of
$77,687.92.
The head contractor applied for judicial
review to quash the adjudication
determination on the ground that, among
other things, the December Claim was served
outside the time limit prescribed in s 14(4)(b)
of the Act as it included claims for works
which were the subject of reference dates
that had accrued more than three months
earlier having, regard to the date when the
works were in fact performed.
Section 14(4) of the Act provides, in
substance, that:
a payment claim may be served only within
the later of:
the period determined by the construction
contract (s14(4)(a)); or,

15 | P a g e
three months after the reference date
referred to in s. 9(2) that relates to that
progress claim (s14(4)(b)).
s. 14(9) permits a claimant to include in a
payment claim an amount that has been the
subject of an earlier payment claim if that
amount has not been paid.
The head contractor argued that works were
“tied” or linked to the applicable reference
date and that s14(4)(b) prohibited a claim for
works more than three months after the
relevant reference date applicable to these
works. See [31] and [33(b)].
Judicial Review
His Honour, Digby J, relevantly found that:
Section 14 only restricts the period within
which a payment claim can be served, that is,
three months after the reference date (at
[45]);
Sections 14(4)(b) and 14(5)(b) of the Act do
not prohibit a specific item of work being
claimed in a payment claim even though the
payment claim was made more than three
months after the reference date applicable to
the subject works, provided the payment
claim being the vehicle for the claim is itself a
valid and timely payment claim under the Act
(at [46] – [48]). It is the payment claim rather
than the amount or item of work which is the
subject of the time limit under s 14(4) (at
[53]).
In particular, his Honour said at [47]:
“Accordingly, a claim for an item of work
and/or a claim for an item of goods and
services, may be included again and again as
components of successive payment claims,
provided the payment claim for a progress
payment is itself valid and timely pursuant to
the SoP Act.”
Conclusion
This decision is a win for contractors making
claims under the Act. It ensures that if
amounts are properly claimed in payment
claims made under the Act – but not paid –
they can nevertheless be claimed again and
again in later valid payment claims and the
contractor will not lose its rights to recover
those amounts at adjudication despite the 3-
month limitation on claims in s 14(4)(b) of the
Act.
David McAndrew QC
Barrister
Room 13, Level 16, Owen Dixon Chambers
West, 525 Lonsdale Street, Melbourne VIC
3000 Australia | D +61 39225 8761 | F +61 3
9225 8375 | M 0412 68 1985 |
dmcandrew@vicbar.com.au

16 | P a g e
WHEN WILL WORK NOT BE
“BUILDING WORK” UNDER THE
QBCC ACT?
Key takeaways
The recent decision in Waterford PPG Pty Ltd
v Civil Constructors (Aust) Pty Ltd [2020] QSC
8 comes as a reminder that the exclusions
from the definition of “building work” are to
be construed broadly, so as to give effect to
the clear and express legislative intention to
exclude particular types of work from the
regulatory framework set out in the QBCC Act.
The guidance provided by the Court in this
decision is particularly important for building
and construction clients operating in
Queensland given the implications for access
to the adjudication procedures, the penalties
prescribed under the QBCC Act, and other
potential regulatory implications of carrying
out building work without the appropriate
licence.
Background
Waterford PPG Pty Ltd (Waterford) and Civil
Constructors (Aust) Pty Ltd (Civil) were parties
to a contract for the construction of certain
drainage and sewerage reticulation works for
a proposed subdivision.
During the course of the works, Waterford
disputed a payment claim submitted by Civil,
and the matter proceeded to adjudication.
The adjudicator determined the matter
substantially in Civil‘s favour. Waterford
sought declaratory relief before the Court and
contended that the adjudicator’s
determination should be set aside for
jurisdictional error. Waterford submitted that
Civil’s structural landscaping class of building
licence limited Civil to the construction of
retaining walls or other similar structures. It
followed, in Waterford’s submission, that
Civil’s building licence did not entitle Civil to
perform the “building work” the subject of
the disputed payment claim, such that there
was no enforceable construction contract to
which the adjudication regime could apply.
Prohibition against “unlawful building work”
(i.e. carrying out building work without the
appropriate licence)
Section 42 of the QBCC Act prohibits the
carrying out of, or undertaking to carry out,
building work without the appropriate class of
licence. The effect of that provision being

17 | P a g e
that, if Civil did not hold the appropriate class
of licence, and had carried out building work,
Civil would be:
‘not entitled to any monetary or other
consideration’ for the performance of that
work’
unable to claim payment pursuant to
contractual terms for the building work.
unable to access the security of payment
regime (ie there would be no jurisdiction to
ground the adjudication application as no
enforceable construction contract exists).
limited to claiming its actual costs absent any
profit, the cost of the contractor’s own or
employee labour, amounts in excess of the
contract sum or any unreasonable expenses.
Therefore the issue before the Court turned
on whether the work which Civil carried out
constituted “building work” for the purpose of
the QBCC Act. The QBCC Act operates by way
of a broad definition of what is “building
work”, subject to a series of specific
exclusions from that definition contained in
the Regulations under the QBCC Act.
Included in the definition of “building work” is
the erection or construction of a building. The
term “building” is defined as including a water
tank connected to the stormwater system for
a building. “Building work” is also defined to
include the provision of sewerage or drainage
in connection with a building and any site
work (including construction of retaining
structures) related to work of that kind.
Relevantly, the Regulations state that building
work under the QBCC Act does noes include
“Construction, extension, repair or
replacement of a water reticulation system,
sewerage system or stormwater drain, other
than works connecting a particular building to
a main of the system or drain.” Importantly,
the Regulations also specify that a “building”
in this context, includes a “proposed
building”.
Decision
Boddice J held that there was no lack of
jurisdiction because Civil was not required to
hold a licence for these work and therefore
Civil was entitled to make the adjudication
application. In so finding, His Honour
concluded that:
the works carried out by Civil involved,
effectively, the construction of a sewerage
system; they were not a “building” in their
own right. Therefore, this did not amount to
connecting a building to a main sewer line, as
additional work needed to be undertaken to
connect any future (but not yet “proposed”)
building to a main.
at the time the work was undertaken it could
not be properly contended there was a
proposed building as the proposed lots had

18 | P a g e
not yet been subdivided, although His Honour
did acknowledge such an inference was
available.
the Regulations evidence a legislative
intention to exclude particular works from the
definition of building work, such that it would
defeat the express wording of the Regulations
to hold that the construction of a sewerage
system constituted “building work” for the
purpose of the QBCC Act.
This article was written by Scott Watson and
Aisling Scott.
Scott Watson
Partner
Brisbane
T +61 7 3244 8082
M +61 417 207 861
Amy Munro
Partner
Melbourne
T +61 3 9643 4195
M +61 408 839 355

19 | P a g e
TCC JUDGEMENTS 2020 ENGLAND
AND WALES HIGH COURT
(TECHNOLOGY AND
CONSTRUCTION COURT) DECISION
2020 ENGLAND AND WALES COURT
OF APPEAL (CIVIL DIVISION)
DECISIONS
January
• DBE Energy Ltd v Biogas Products Ltd
[2020] EWHC 401 (TCC) (17 January
2020)
• John Innes Foundation Earlham
Institute & Ors v Vertiv Infrastructure
Ltd [2020] EWHC 19 (TCC) (17 January
2020)
• MPB v LGK [2020] EWHC 90 (TCC) (23
January 2020)
• VVB M&E Group Ltd & Anor v Optilan
(UK) Ltd [2020] EWHC 4 (TCC) (07
January 2020)
February
• Blackpool Borough Council v
Volkerfitzpatrick Ltd and Range
Roofing and Cladding Ltd & Ors
[2020] EWHC 387 (TCC) (25 February
2020)
• Goldman & Ors v Zurich Insurance Plc
& Anor [2020] EWHC 192 (TCC) (05
February 2020)
• PBS Energo AS v Bester Generacion
UK Ltd & Anor [2020] EWHC 223
(TCC) (07 February 2020)
• Ryhurst Ltd v Whittington Health
NHS Trust [2020] EWHC 448 (TCC) (28
February 2020)
• Yuanda (UK) Company Ltd v
Multiplex Construction Europe Ltd &
Anor [2020] EWHC 468 (TCC) (28
February 2020)
March
• Jalla & Ors v Royal Dutch Shell Plc &
Ors [2020] EWHC 459 (TCC) (02
March 2020)
• Jalla & Ors v Royal Dutch Shell Plc &
Ors [2020] EWHC 738 (TCC) (27
March 2020)
• Lungowe v Vedanta Resources Plc &
Ors [2020] EWHC 749 (TCC) (27
March 2020)

20 | P a g e
2020 ENGLAND AND WALES COURT
OF APPEAL (CIVIL DIVISION)
DECISION TCC adjustments for
hearings to take account of
coronavirus
C Spencer Ltd v M W High Tech Projects UK
Limited [2020] EWCA Civ 331 (06 March
2020)
PBS Energo A.S. v Bester Generacion UK Ltd
[2020] EWCA Civ 404 (19 March 2020)
TCC ADJUSTMENTS FOR HEARINGS
TO TAKE ACCOUNT OF
CORONAVIRUS
Mrs Justice O'Farrell has adapted the standard
directions for adjudication enforcement, and
for trials, to accommodate remote hearings.
Parties are being sent letters: (1) in respect of
short hearings (CMCs, PTRs, applications and
adjudication enforcement), notifying them
that the hearing will be remote unless
objection is made; and (2) in respect of trials,
notifying them that the Court will consider a
remote trial but inviting the parties to discuss
the best approach for their dispute (some
trials will simply have to be adjourned).
PRACTICE DIRECTION 51Y – VIDEO OR AUDIO
HEARINGS DURING CORONAVIRUS
PANDEMIC
This Practice Direction supplements Part 51
1. This practice direction, made under rule
51.2 of the Civil Procedure Rules (“CPR”),
makes provision in relation to audio or video
hearings. It ceases to have effect on the date
on which the Coronavirus Act 2020 ceases to
have effect in accordance with section 75 of
that Act.
2. During the period in which this Direction is
in force, where the court directs that
proceedings are to be conducted wholly as
video or audio proceedings and it is not
practicable for the hearing to be broadcast in
a court building, the court may direct that the
hearing must take place in private where it is
necessary to do so to secure the proper
administration of justice.
3. Where a media representative is able to
access proceedings remotely while they are
taking place, they will be public proceedings.
In such circumstances it will not be necessary
to make an order under paragraph 2 and such
an order may not be made.
4. Any hearing held in private under
paragraph 2 must be recorded, where that is
practicable, in a manner directed by the court.
Where authorised under s.32 of the Crime
and Courts Act 2013 or s.85A of the Courts Act

21 | P a g e
2003 (as inserted by the Coronavirus Act
2020), the court may direct the hearing to be
video recorded, otherwise the hearing must
be audio recorded. On the application of any
person, any recording so made is to be
accessed in a court building, with the consent
of the court.
CONSTRUCTION CONTRACTS
ADJUDICATION SERVICE
SUSPENDED
In accordance with the latest Government
announcements, the Construction Contracts
Adjudication Service is not in a position to
process any applications for the appointment
of an Adjudicator under section 6(4) of the
Construction Contracts Act, 2013.
The Construction Contracts Adjudication
Service will resume for business as soon as
circumstances allow. We thank parties in for
their understanding in dealing with us in this
matter.
https://dbei.gov.ie/en/Construction-
Contracts-Adjudication-Service/
SCL INTERNATIONAL CONFERENCE
2020
The Society of Construction Law 9th
International Conference has been postponed
till 2021.
The Right Honourable Lord Justice Coulson
will be a keynote speaker at the Conference.
http://www.constructionlaw2020.com/scl20

22 | P a g e
UK ADJUDICATORS 2020 LONDON
ADJUDICATION & ARBITRATION
CONFERENCE
The 2020 conference takes place on the 20
August 2020 at the IET 2 Savoy Place, London
WC2R 0BL in the 450 capacity Kelvin Lecture
Theatre.
Unfortunately Sir Rupert Jackson is now no
longer able to attend as one of our guests of
honour.
Speakers, chairs and hosts include:
Louise Woods
Marcus Teverner QC
James Doe
Andrew Anglionby
Sean Gibbs
David Sawtell
Matthew Finn
Anthony Albertini
Iain Aitchison
Julie Forsyth
Murray Armes
Virginie Colaiuta

23 | P a g e
Chris Dyson
Victoria Tyson
Dan Miles
Peter Collie
Dean Sayers
Robert Palles Clark
Don Harvey
UKA Panel members can book a reduced-price
ticket through the Eventbrite booking
website. You will be mailed a link for your
own personal use.

UK Adjudicators April 2020 Newsletter

Recommended

Recommended

More Related Content

What's hot

What's hot (17)

Similar to UK Adjudicators April 2020 Newsletter

Similar to UK Adjudicators April 2020 Newsletter (20)

More from Sean Gibbs DipArb, FCIARB, FCIOB, FRICS, MICE

More from Sean Gibbs DipArb, FCIARB, FCIOB, FRICS, MICE (20)

Recently uploaded

Recently uploaded (20)

UK Adjudicators April 2020 Newsletter