UK Adjudicators February 2020 newsletter

WWW.UKADJUDICATORS.CO.UK
FEBRUARY 2020 NEWSLETTER
1 | P a g e
EDITORS COMMENTS
The 2020 Edinburgh Adjudication &
Arbitration Conference takes place on Friday
the 6th March in Edinburgh. The venue for the
2020 conference will be the Royal Society of
Edinburgh at 25-26 George Street, Edinburgh.
If you would like to attend, support, sponsor
or exhibit please get in touch to express your
interest. Panel members can book discounted
tickets through the Eventbrite website link
which can be found at the rear of this
newsletter.
The 2020 London Adjudication & Arbitration
Conference takes place on the 20 August 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 are a supporting
organisation for the Dispute Resolution Board
Conference that takes place in Cape Town,
South Africa in May 2020. If you can attend;
this is an excellent networking and knowledge
sharing event for those interested in Dispute
Boards and being a Dispute Board Member.
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.
We have taken a table at the SCL London
lunch on the 7 February and look forward to
meeting some of you there.
There is also an opportunity to attend the
Cheltenham Gold Cup on the 13 March 2020
as we have a few spaces available in a
hospitality box.
If you can organise a local event or host an
event for us, please do get in touch. We hope
to have a North West event in the first
quarter of 2020 and will provide more details
in due course.
Sean Gibbs LLB(Hons) MICE LLM 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
ENFORCING AN ADJUDICATOR’S
DECISION IN NORTHERN IRELAND
As Ciaran Williams explains it has been over
twenty years since the Construction
Contracts (Northern Ireland) Order 1997 (the
“Construction Order”) introduced statutory
adjudication in Northern Ireland and the
Construction Order provides for an almost
identical construction adjudication
framework to the Housing Grants,
Construction and Regeneration Act 1996
(“HGCRA”) in England and Wales.
The Construction Order was amended by the
Construction Contracts (Amendment) Act
(Northern Ireland) 2011 which introduced
changes to the payment procedures and
removed the requirement for contracts to be
in writing. These changes are similar to the
amendments made to the HGCRA by Part 8 of
the Local Democracy, Economic Development
and Construction Act 2009.
The number of adjudications in Northern
Ireland has steadily increased since the
Construction Order came into force and there
have been a number of enforcement cases
before the Northern Irish Courts. This article
discusses the steps to enforcement and some
of the published decisions from the High
Court of Justice in Northern Ireland.
Since 1999 there have been around ten
published adjudication enforcement decisions
in Northern Ireland and the courts’ approach
to enforcement has generally been consistent
with that in England and Wales.
In Northern Ireland, construction disputes are
heard in a commercial list in the Queen’s
Bench Division of the High Court of Justice
Northern Ireland, whereas in England and
Wales such cases are heard in the Technology
and Construction Court.
Similar to England and Wales, there is no need
to comply with any pre-action protocols
provided that the enforcement concerns an
adjudicator’s decision that was referred
pursuant to the Construction Order.
The steps to enforcement in Northern Ireland
The first step is to issue a writ of summons in
the Queen’s Bench Division of the High Court
of Justice. The statement of claim should be
endorsed onto the writ because an
application for summary judgment cannot
proceed unless the statement of claim has
been served.
If the writ is served within the jurisdiction of
Northern Ireland, the defendant has 14 days
from the service of the writ to enter a

3 | P a g e
memorandum of appearance (different rules
apply if service is outside the jurisdiction).
The next stage is to apply for summary
judgment in accordance with Order 14 of the
Rules of the Court of Judicature (Northern
Ireland) 1980 on the basis that the defendant
has no defence to the claim. The application is
made by a summons and supported by an
affidavit verifying the facts.
The Court will then list the case for directions
and a timetable will be set in terms of the
filing of evidence and a hearing date. The case
will be listed for hearing as soon as possible,
the Court aiming to list the matter for hearing
within 28 days. Some of the key decisions
from the Northern Irish Courts are discussed
below.
Decisions from the High Court of Justice in
Northern Ireland
Coleraine Skip Hire Ltd v Ecomesh Ltd [2008]
NIQB 141 (27 October 2008)
This was the first application for summary
judgment to enforce an adjudicator’s decision
in Northern Ireland. In this case, Ecomesh (the
defendant) applied for summary judgment in
its favour in the sum of £48,234.39.
Coleraine Skip Hire Ltd (“CSH”) resisted the
application on a number of grounds including
jurisdiction and that the decision was issued
outside the statutory 28-day time limit for an
adjudicator’s decision to be published in
accordance with the Construction Order.
Mr Justice Weatherup decided that the
adjudicator’s decision was issued on time and
that there was no issue as to jurisdiction. CSH
had also applied for a stay on the grounds of
Ecomesh’s financial standing, but Mr Justice
Weatherup decided that the financial position
of the payee did not warrant a stay on this
ground and that Ecomesh had an
unanswerable claim for the sum of
£48,234.39.
However, the Judge held that the application
related to only one part of the claims that
were in dispute and that the sum of
£48,234.39 should only be paid following the
conclusion of the trial which was ongoing.
Exercising the discretion of the Court, Mr
Justice Weatherup granted a stay pending the
outcome of the trial on all of the matters in
dispute between parties.
Following this case, there was some concern
that adjudication might not be as successful in
Northern Ireland because a stay was granted
in circumstances where the payee’s financial
position was satisfactory. The ethos behind
construction adjudication is “pay now, argue
later” and it is designed to promote cash flow
in the construction industry.
D G Williamson Ltd v Northern Ireland Prison
Service [2009] NIQB 8 (27 January 2009)

4 | P a g e
The second application to enforce an
adjudicator’s award appeared before the
Northern Irish Courts in a case between D G
Williamson Ltd (“DGW”) and the Northern
Ireland Prison Service (the “Prison Service”).
DGW applied to enforce an adjudicator’s
decision in its favour in the sum of
£261,898.76.
The Prison Service put forward a number of
grounds to resist the enforcement of the
award including that the adjudicator did not
have jurisdiction and that the contract was
not in writing. Mr Justice McLaughlin rejected
these grounds and then proceeded to
consider the Prison Service’s application to
order a stay of the enforcement pursuant to
Order 14 rule 3(2).
Mr Justice McLaughlin did not grant the stay
and awarded judgment in favour of DGW. Mr
Justice McLaughlin showed support for
construction adjudication in Northern Ireland
and stated:
“I am satisfied that the starting point for a
court dealing with a request for enforcement
of the award of an Adjudicator is that it
should work on the assumption that the
award ought to be enforced, on a summary
basis if necessary. The purpose of the
legislation is to ensure speedy payment by
dint of a summary process.”
This judgment was a welcome development
and it set the ground rules for adjudication in
Northern Ireland. Whilst there are certain
circumstances where an adjudicator’s
decision will not be enforced, the Court
showed a willingness to enforce adjudication
decisions and the Judge referred to the
importance of the legislation in terms of
protecting cash flow in the construction
industry.
Mel Davidson Construction v Northern Ireland
Housing Executive [2014] NIQB 110
This was another key case and involved Mel
Davidson Construction (“MDC”) claiming
summary judgment in relation to an
adjudicator’s decision of 14 February 2014,
which awarded MDC £53,440.28. This was the
second adjudication between the parties and
it concerned interest on a sum that had been
paid by the Northern Ireland Housing
Executive (“NIHE”) to MDC following the first
adjudication decision of 15 March 2013.
NIHE resisted enforcement on two grounds.
The first ground was that the dispute was the
same or substantially the same as that which
had previously been referred to adjudication.
The second ground was that there was an
estoppel because the interest claim should
have been brought in the first adjudication.
In respect of the first ground, Mr Justice
Weatherup considered a number of English

5 | P a g e
cases including Quietfield Limited v Vascroft
Contractors Limited (2006) EWCA Civ 1737
and concluded that:
“I see nothing in the nature of the Scheme
which permits the Adjudicator, in such
circumstances, to refuse to decide a matter
referred for decision. The Scheme requires
the Adjudicator to decide a claim if it is
possible for him to do so. There are instances
where an Adjudicator has been unable to
make a decision, possibly because the
material presented is not sufficient to permit
the decision to be made. That is not this
case.”
In respect of the second ground, Mr Justice
Weatherup commented that a delay in
asserting a contractual right within time limits
would not usually result in the loss of the right
and that MDC’s delayed response did not
amount to a representation that results in
estoppel. Accordingly, the Judge awarded
judgment in favour of MDC for the sum of
£53,440.28.
Conclusion
The construction industry is reliant on cash
flow and the purpose of adjudication is to
provide a quick and cost-effective dispute
resolution mechanism to maintain cash flow
in the construction industry. As part of this
process, it is important that parties can
enforce adjudicators’ decisions quickly and
the Northern Irish Courts have acted to
promote the success of adjudication.
The Northern Irish Courts have developed a
process so that adjudication cases are heard
as quickly as possible and there is an
assumption that adjudication awards ought to
be enforced. The relatively low number of
adjudication enforcement decisions published
by the Northern Irish Courts is perhaps a sign
that adjudication has been a success over the
past twenty years.
Ciaran Williams is an Associate with Fenwick
Elliott LLP
cwilliams@fenwickelliott.com
Fenwick Elliott LLP
Aldwych House
71-91 Aldwych
London, UK
WC2B 4HN
+44 (0)20 7421 1986

6 | P a g e
THE ENFORCEABILITY OF THE
ADJUDICATOR’S DETERMINATION
AND THE POTENTIAL FOR JUDICIAL
INTERVENTION: QUITE A HILL TO
CLIMB
The framers of Ontario’s Construction Act
intended to provide a reasonable basis for the
court to support the determinations of
adjudicators, while at the same time allowing
for the court to play an effective supervisory
role where an adjudicator has seriously
transgressed. The fact that adjudicator’s
determinations are issued on an interim
binding basis, as per ss. 13.1 and 13.15(1) of
the Act, and are subject to the final and
binding decisions of the courts or arbitral
tribunals, provides a principled basis for
providing such legislative protection to the
determinations of adjudicators.
From a public policy perspective, if it is
probable that the court would not intervene,
then parties are more likely to honour the
adjudicator’s determination and the policy
objectives of the Act are more likely to be
achieved.
The High Bar
Accordingly, while judicial review has been
made available, its availability is significantly
constrained.
First, permission (“leave”) is required before a
party may apply for judicial review. Under s.
13.18(1) of the Act, an application for judicial
review of a determination of an adjudicator
may only be made with leave of the Divisional
Court, and under subs. (2) a motion for leave
must be filed no later than 30 days after the
determination is communicated to the
parties. Pursuant to subs. (3), a motion for
leave may be dismissed without reasons.
Second, under s. 13.18(4), no appeal lies from
an order on a motion for leave to bring an
application for judicial review.
Third, an adjudicator’s determination can only
be set aside for specified reasons.
Specifically, s. 13.18(5) provides that the
determination of an adjudicator may only be
set aside if the applicant establishes one or
more of the following grounds:
The applicant participated in the adjudication
while under a legal incapacity.
The contract or subcontract is invalid or has
ceased to exist.
The determination was of a matter that may
not be the subject of adjudication, or of a

7 | P a g e
matter entirely unrelated to the subject of the
adjudication.
The adjudication was conducted by someone
other than an adjudicator.
The procedures followed in the adjudication
did not accord with the procedures to which
the adjudication was subject, and the failure
to comply prejudiced the applicant’s right to a
fair adjudication.
There is a reasonable apprehension of bias on
the part of the adjudicator; or
The determination was made as a result of
fraud.
Conspicuous by its absence is any reference to
errors of fact or law. In other words, provided
that none of the seven grounds is applicable,
the adjudicator — as in the U.K. — has “the
right to be wrong”.
Fourth, s. 13.18(7) provides that an
application for judicial review does not
operate as a stay of the operation of the
determination unless the Divisional Court
orders otherwise.
At the same time, however, subs. (6) provides
that if the Divisional Court does set aside the
determination, the court may require that any
or all amounts paid in compliance with the
determination be returned.
The philosophical approach taken by s.
13.18(5) is consciously analogous to that
contained in Chapter VII of the UNCITRAL
Model Law on International Commercial
Arbitration (1985), with amendments as
adopted in 2006. By way of comparison,
article 34(2) of the Model Law provides:
(2) An arbitral award may be set aside by the
court specified in article 6 only if:
(a) the party making the application furnishes
proof that:
(i) a party to the arbitration agreement
referred to in article 7 was under some
incapacity; or the said agreement is not valid
under the law to which the parties have
subjected it or, failing any indication thereon,
under the law of this State; or
(ii) the party making the application was not
given proper notice of the appointment of an
arbitrator or of the arbitral proceedings or
was otherwise unable to present his case; or
(iii) the award deals with a dispute not
contemplated by or not falling within the
terms of the submission to arbitration, or
contains decisions on matters beyond the
scope of the submission to arbitration,
provided that, if the decisions on matters
submitted to arbitration can be separated
from those not so submitted, only that part of
the award which contains decisions on

8 | P a g e
matters not submitted to arbitration may be
set aside; or
(iv) the composition of the arbitral tribunal or
the arbitral procedure was not in accordance
with the agreement of the parties, unless such
agreement was in conflict with a provision of
this Law from which the parties cannot
derogate, or, failing such agreement, was not
in accordance with this Law; or
(b) the court finds that:
(i) the subject-matter of the dispute is not
capable of settlement by arbitration under
the law of this State; or
(ii) the award is in conflict with the public
policy of this State.
A review of the two provisions indicates that
grounds 1 and 2 of s. 13.18(5) are analogous
to article 34(2)(a)(i) of the Model Law, while
ground 3 aligns with both article 34(2)(a)(iii)
and article 34(2)(b)(i), and grounds 4 and 5
are similar to articles 34(2)(a)(ii) and (iv).
Although bias and fraud, the final two
grounds referred to in s. 13.18(5) have no
parallel in s. 34 of the Model Law, they are
consistent with the grounds that are available
to challenge an arbitrator as set out in article
12 of the Model Law, as follows:
Article 12. Grounds for challenge
(1) When a person is approached in
connection with his possible appointment as
an arbitrator, he shall disclose any
circumstances likely to give rise to justifiable
doubts as to his impartiality or independence.
An arbitrator, from the time of his
appointment and throughout the arbitral
proceedings, shall without delay disclose any
such circumstances to the parties unless they
have already been informed of them by him.
An arbitrator may be challenged only if
circumstances exist that give rise to justifiable
doubts as to his impartiality or independence,
or if he does not possess qualifications agreed
to by the parties. A party may challenge an
arbitrator appointed by him, or in whose
appointment he has participated, only for
reasons of which he becomes aware after the
appointment has been made.
(2) Of the seven grounds set out in s. 13.18(5),
ground 3 (the determination was of a matter
that may not be the subject of adjudication or
of a matter entirely unrelated to the subject
of the adjudication) and ground 5 (the
procedures followed in the adjudication did
not accord with the procedures to which the
adjudication was subject, and the failure to
comply prejudiced the applicant’s right to a
fair adjudication) are likely to be the most
frequently invoked. Simply put, ground 3
raises the jurisdictional issue of the
adjudicator who “answers the wrong

9 | P a g e
question”, while ground 5 raises the issue of
natural justice.
Ground 3: Jurisdiction
From a jurisdictional perspective, the matters
that may be the subject of adjudication are
set out in s. 13.5(1) as follows:
The valuation of services or materials
provided under the contract.
Payment under the contract, including in
respect of a change order, whether approved
or not, or a proposed change order.
Disputes that are the subject of a notice of
non-payment under Part 1.
Amounts retained under section 12 (set-off by
trustee) or under subsection 17(3) (lien set-
off).
Payment of a holdback under section 26.1 or
26.2.
Non-payment of holdback under section 1.
Any other matter that the parties to the
adjudication agree to, or that may be
prescribed.
If a party initiates an adjudication in respect of
a matter not listed, then a challenge under
ground 3 should succeed.
Similarly, under s. 13.5(3) an adjudication may
not be commenced if the notice of
adjudication is given after the date the
contract or subcontract is completed, unless
the parties to the adjudication agree
otherwise. Accordingly, if a determination
results from an adjudication initiated after
completion, and there is no express or implied
agreement to adjudicate in the circumstances,
a challenge based upon ground 3 would likely
succeed.
As well, under s. 13.5(4) an adjudication may
only address a single matter, unless the
parties to the adjudication and the
adjudicator agree otherwise. Thus, a
determination dealing with multiple matters,
absent an express or implied agreement to
adjudicate multiple issues, would be subject
to a challenge based upon ground 3.
In other words, in exercising their powers,
adjudicators must make sure that the
matter(s) included within the adjudication are
either within the ambit of the jurisdiction
created by the Act, or that there is an express
agreement to adjudicate between the parties.
Ground 5: Natural Justice
The applicability of the principles of natural
justice is also constrained, or focused, by a
number of factors:
First, the adjudicator is intended to function
as an inquisitor.

10 | P a g e
Pursuant to s. 13.12 (1), and subject to the
obligation to conduct the adjudication in an
impartial manner, in conducting an
adjudication an adjudicator may issue
directions respecting the conduct of the
adjudication; take the initiative in ascertaining
the relevant facts and law; and draw
inferences based on the conduct of the
parties to adjudication; conduct an on-site
inspection (subject to certain limitations);
obtain the assistance of a merchant,
accountant, actuary, building contractor,
architect, engineer or other person in such a
way as the adjudicator considers fit, as is
reasonably necessary to enable him or her to
determine better any matter of fact in
question; make a determination in the
adjudication; and exercise any other power
that may be prescribed in the Regulations;
and, subject to the express requirements of
the section, the adjudicator may conduct the
adjudication in the manner he or she
determines appropriate in the circumstances.
Second, so long as the adjudicator complies
with the minimum procedural requirements
of the Act and the Regulation, the
determination will not be exposed to a serious
risk of a successful challenge. This is because
s. 13.6(1) provides that an adjudication shall
be conducted in accordance with the
adjudication procedures set out in this Part,
the regulations, and, subject to subs. (2), any
additional adjudication procedures that may
be set out in the contract or subcontract.
Subsection (2) provides that adjudication
procedures set out in a contract or
subcontract apply only to the extent that they
do not conflict with this Part and the
regulations, and their application is subject to
the exercise of the adjudicator’s powers
under s. 13.12.
Third, the adjudicator, in conducting the
adjudication, is obligated to respect the
principle of proportionality, which means that
challenges under ground 5, which attempt to
raise traditional administrative law
complaints, will not succeed. For example, in
the event that the adjudicator, reasonably
respecting the principle of proportionality,
issues a procedural direction, then it is
unlikely that the court would intervene. In
fact, it is anticipated that many adjudications
involving small dollar amounts or discrete
issues will be conducted on a documents-only
basis — as is the case in other jurisdictions.
The reason for this is that under s. 4(b) of O.
Reg. 306/18, adjudicators are required to
“comply with the code of conduct”. The code
of conduct is described at s. 7(1) of the
Regulation as follows:
7.(1) The Authority shall, subject to the
approval of the Minister, establish and
maintain a code of conduct for adjudicators,
and shall make the code of conduct publicly
available on its website.

11 | P a g e
(2) The code of conduct shall address, at a
minimum, the following matters:
Conflicts of interest and related procedural
matters.
Principles of proportionality in the conduct of
an adjudication, and the need to avoid excess
expense.
Principles of civility, procedural fairness,
competence and integrity in the conduct of an
adjudication.
The confidentiality of information disclosed in
relation to an adjudication.
Procedures for ensuring the accuracy and
completeness of information in the
adjudicator registry.
As is evident from the Act and the
Regulations, it is intended that the
adjudicator, as an inquisitor, is empowered to
take the initiative to craft a procedure that is
appropriate, and proportional to the dispute,
and procedural fairness will be considered by
the court through this over-arching lens.
Conclusion
It is clear that the Act and the Regulations are
written so as to support the institution of
adjudication, and limit the court’s need to
intervene to a limited number of extreme
circumstances. Of particular importance, of
course, is the implicit recognition that the
public policy objectives of interim binding
dispute resolution are of sufficient
importance to support the proposition that,
although adjudicators are not empowered to
answer “the wrong question”, they do have
the “right to be wrong” and still withstand
judicial review.
From a public policy perspective, if it is
unlikely that the court will intervene, then
parties are more likely to honour
determinations and the policy objectives of
the Act are more likely to be achieved.
This article was originally published in the
January/February 2020 issue of the Canadian
Law Letter.
R. Bruce Reynolds
Singleton Urquhart Reynolds Vogel LLP, 150
King Street West, Suite 2512 , Toronto ON
M5H 1J9
BReynolds@singleton.com

12 | P a g e
ADJUDICATION WATCH - ANALYSIS
OF KEY 2019 JUDGMENTS: PART 3
In the third of our retrospective reviews of the
approach of the Technology and Construction
Court (TCC) to adjudication challenges in
2019, our construction team analyses further
significant decisions.
LJH Paving Ltd v Meeres Civil
Engineering Ltd [2019]
Meadowside Building
Developments Ltd (in liquidation) v
12-18 Hill Street Management
Company Ltd [2019]
ISG v English Architectural Glazing
[2019]
LJH Paving Ltd v Meeres Civil Engineering Ltd
[2019]
Background
LJH and Meeres were involved in works under
several contracts.
Disputes arose resulting in 4 adjudications -
only one adjudication decision was
challenged; that related to the Westfield
Works final account. The adjudicator's
decision had been that Meeres should pay
approximately £132,400 plus VAT and also the
adjudicator's fees of around £11,400.
Meeres resisted enforcement on 2 grounds:
that the dispute had not crystallised at the
time that the Notice of intention to refer a
dispute to adjudication had been served; and
that in the Westfield final account
adjudication, LJH claimed around £2,000
related to works on a different site that were
arguably carried out under a different
contract.
LJH's arguments included contentions that
any jurisdictional challenges had been waived
in any event and that ultimately, if necessary,
the sum ordered by the adjudicator could be
severed and the decision enforced save for
the disputed sum.
TCC Decision
Had a dispute crystallised?
Reviewing previous case law, Mr Adam
Constable QC confirmed that the
crystallisation (or not) of a dispute will be a
question of fact in each case. Meeres'
contentions that a dispute had not arisen
were swiftly dismissed by the Judge who
concluded that there was unarguably a clear

13 | P a g e
dispute, part of which centred on the need for
and existence of supporting documents.
Multiple contracts?
The TCC rejected LJH's contention as the
Notice of Adjudication was clearly limited to
claims under the Westfield contract - this
allegation was right or wrong, and was a
matter of substantive merit.
On an obiter basis (i.e. not essential and
therefore not having the potential to create a
binding precedent), the Judge's view was that
even if the Adjudicator had not had
jurisdiction in respect of this particular sum
(around £2,000), it would have been
appropriate for the TCC simply to deduct this
sum from the amount ordered to be paid, by
way of severance.
Jurisdiction: was LJH's general reservation of
rights effective?
On an obiter basis, the Judge stated that
Meeres had in any event waived the right to a
jurisdictional defence on this basis for various
reasons including the fact that the general
reservations made (e.g. "reserves its rights to
maintain its position both on the matters
submitted below and on further matters
which either may have arisen and are not
addressed herein") were "so vague as to be
ineffective".
Commentary
Although on an obiter basis, the TCC's clear
indication that if necessary, the offending
amount flowing from any decision made
without jurisdiction would have been severed
is helpful - in this case, it was key that the sum
in question was (1) specific and (2) only a
small part of the total sum awarded by the
adjudicator. The Judge, Mr Adam Constable
QC stated: " [i]t would be an affront to
common sense if a flawed decision relating to
a readily identifiable sum representing less
than 2% of the total amount awarded could
undermine the enforceability of the Award as
a whole".
The case also gives a further note of caution
about seeking to rely on general reservations
relating to jurisdiction - it will depend on the
wording and approach in each case but
wherever possible, reservations should be
specific.
Meadowside Building Developments Ltd (in
liquidation) v 12-18 Hill Street Management
Company Ltd [2019]
This judgment follows on from the Court of
Appeal (CA) decision in Bresco Electrical
Services Ltd v Michael J Lonsdale
(Electrical) Ltd [2019] (reviewed in our
alert of 29 January 2019).
Background

14 | P a g e
In 2014, Meadowside was appointed by 12-18
Hill Street Management Company (HSMC)
under a contract based on the JCT 2011 Minor
Works wording to carry out repair works -
practical completion (PC) was certified in
March 2015.
In July 2015, Meadowside went into
liquidation and liquidators were appointed
(the Liquidators).
In September 2017, Pythagoras Capital Ltd
(PCL) was appointed by the Liquidators to
pursue payment of debts. Having identified
itself as agent for the Liquidators, PCL began
correspondence with HSMC over monies
allegedly due pursuant to disputes that had
arisen prior to PC.
An adjudication was then commenced in
February 2018. HSMC did not take part
substantively in the adjudication on the basis
that it contended that the adjudicator did not
have jurisdiction, as Meadowside was in
liquidation.
In short, in a decision dated 3 April 2018, the
Adjudicator found that a net balance of
£26,629.63 was due to Meadowside. HSMC
did not pay, and these TCC proceedings were
commenced seeking enforcement of the
adjudicator's decision.
The Bresco effect
Prior to the hearing of the Meadowside
enforcement proceedings, the Bresco CA
decision (referred to above) was handed
down. At first instance, in Bresco, the TCC had
granted an injunction to prevent an
adjudication continuing as the referring party
was in liquidation.
The Bresco decision was upheld by the Court
of Appeal (CA) - with the Leading Judgment
given by Lord Justice Coulson, the CA decided
that whilst the adjudicator did have
theoretical jurisdiction (here overruling the
first instance decision on that point), there
was no practical utility in allowing the
adjudication to continue. "…Bresco's right to
refer a dispute to adjudication was not
automatically lost when [it] went into
liquidation" but where a company in
liquidation sought to enforce an adjudicator's
decision, it "could only be enforced in
exceptional circumstances".
Meadowside Decision
In the Meadowside judgment, Mr Adam
Constable QC in the TCC identified when
those "exceptional circumstances" are likely
to arise - where:
the adjudication determines the final net
position between the parties;
"satisfactory security" is provided in respect
both of the adjudication award and any

15 | P a g e
adverse costs award in relation to
enforcement proceedings and/or subsequent
legal proceedings;
what is satisfactory as security is a matter of
fact;
any agreement to provide funding or security
does not amount to an abuse of process.
In Meadowside, the funding agreement was
governed by the Damages-based Agreements
Regulations 2013 but appeared to be non-
compliant, which made it unenforceable. As a
result, the TCC held that the issue of abuse of
process point (referred to above) could not be
satisfactorily disposed of and the adjudicator's
decision was not enforced.
Commentary
The clarification provided by the TCC in this
case is undoubtedly helpful but the prospects
of success for an insolvent party in seeking to
enforce a favourable adjudicator's decision
remain slight.
ISG v English Architectural Glazing [2019]
The arguments in this case were wide-ranging
- for the purposes of this review, we focus
largely on issues relating to the extent to
which an adjudicator's decision can be
challenged in proceedings under Part 8 of the
Civil Procedure Rules (rather than points
relating to contractual interpretation).
Background
EAG was appointed as sub-contractor by ISG
for the design, supply and installation of
cladding on a project in London.
Under the terms of the sub-contract (SC), the
works were intended to be commenced in
March 2017, with a completion date of 11
September 2017.
In the event, ISG did not permit EAG to start
on site until 11 September 2017.
Subsequently, a dispute arose in relation to
the revised completion date, and delays for
which EAG was allegedly responsible. ISG's
revised completion date was 6 April 2018,
whilst EAG contended the correct date was 21
December 2018.
By December 2018, ISG had purported to
deduct the sum of £3,183,000 against interim
valuation 35, claiming this was its "bona fide
estimate" of loss and damage, as stipulated
under the terms of the SC. This was made up
of £1,600,000 liquidated damages levied
under the main contract and £1,583,000 in
respect of its own delay related costs.
In January 2019, EAG commenced an
adjudication, seeking declarations to resolve
the disputes relating to time, set off, and
compliance with the notice provisions in the
contract.
Adjudication decision

16 | P a g e
In relation to completion of the SC works, the
adjudicator found that "a fair and reasonable
time" for completion was 22 October 2018.
He also decided that ISG was not entitled to
make the deduction of £3,183,000 against
interim valuation 35, as ISG had not
"demonstrated and proved that EAG was
responsible" for 20 weeks of delay to ISG's
work under the main building contract. As a
result, ISG should pay to EAG the balance due
for interim valuation 35, being £137,435. ISG
made this payment as directed by the
adjudicator, but then commenced these
proceedings in the TCC challenging the
adjudicator's findings.
TCC proceedings
ISG sought numerous and varied declarations
- including some relating to the ambit and
effect of the adjudicator's decision as to the
date by which the works should have been
complete.
ISG's substantive position was in summary
that:
in relation to the extension of time sought by
EAG, as a pre-condition to entitlement, the SC
required EAG to give notification of delay.
EAG had failed to give compliant notification,
and so had lost any entitlement to an
extension of time beyond 6 March 2018, ie
that resulting from the delay to the start of
the SC works on site;
as a result, ISG's bona fide estimate was
binding and conclusive until the final account
was issued.
ISG also sought to limit the ambit of the
adjudicator's decision relating both to the
completion date of 22 October 2018 and as to
responsibility for delay, including applying for
declarations that these findings could only be
determinative for application 35 or the limited
context of ISG's bona fide estimate, and
would be irrelevant for the final
determination or in a subsequent
adjudication.
EAG resisted all contentions made but its
overarching defence was that most of the
declarations sought by ISG required a
consideration of fact and law and so were not
suitable to be determined in these Part 8
proceedings.
TCC decision
In summary, His Honour Judge Stephen Davies
concluded as follows.
Some of the contentions (such as the alleged
failure by EAG to give the required
notification) did involve mixed issues of fact
and law and so were unsuitable for
determination under Part 8 of the Civil
Procedure Rules.

17 | P a g e
Some of the substantive issues raised by the
parties in submissions on the estimate had
not been raised in the declarations sought.
The adjudicator was entitled to make the
determinations set out in his decision.
No declarations were appropriate, either as
sought or otherwise. In terms of alternative
declarations, whilst expressing “... some
sympathy for [ISG] in seeking to obtain clarity
as to the nature and ambit of the
adjudicator's decision", the Judge was not
satisfied that he could make a fair
determination at this stage and also, that
there would be "practical utility" in any such
declaration.
The Judge was not prepared to give
declarations limiting the ambit and effect of
the adjudicator's decision as sought by ISG.
The Judge agreed that the TCC ought to be
concerned only with the questions as to what
was referred and what was decided, stating:
"…[the] court ought not to be too willing to
cut down the scope of what was decided
…….by undertaking too detailed and too fine
an analysis of the reasons given by the
adjudicator for his decision. That would be
both wrong in principle and also unfair on the
adjudicator, given the pressure of time under
which he, like all adjudicators, operate. It
cannot be assumed that the reasons actually
given are exhaustive as to the actual reasons
for the decision. This is not an appellate
process akin to an appeal to the Court of
Appeal from a decision after a trial at first
instance."
Commentary
From his judgment, it is clear that the Judge
considered that many of the issues raised
were simply not appropriate for these Part 8
proceedings. This judgment highlights again
the need carefully to consider the potentially
wasted costs associated with a challenge to an
adjudicator's decision.
In this case, after detailed submissions by
Leading Counsel for both parties, no
declarations at all were made by the TCC. As
set out above, the Judge clearly expressed the
TCC's protective approach towards
adjudication decisions, although he did advise
caution in relation to the practice of serial
adjudications on one contract. We remain of
the view that a high level of pragmatism is
advisable when considering whether or not to
challenge an adjudication decision.
https://gowlingwlg.com/en/insights-
resources/articles/2020/adjudication-watch-
2019-case-law-review-part-3/

18 | P a g e
Ashley Pigott
Partner
Gowling WLG
ashley.pigott@gowlingwlg.com
Cathy Moore
PSL Principal Associate
Gowling WLG
cathy.moore@gowlingwlg.com
Gowling WLG
Two Snowhill,
Birmingham,
B4 6WR,
United Kingdom,
DX 312501
Birmingham 86
T: +44 (0)370 903 1000
F: +44 (0)370 904 1099
SETTLEMENT AGREEMENTS – ARE
WE AGREED UNDER, OR IN
CONNECTION WITH, THE
CONTRACT?
A judgement in the Technology and
Construction Court (TCC) in 2016 provided
useful guidance on the jurisdiction of an
adjudicator to decide disputes in relation to
final account settlement agreements. In J
Murphy & Sons Ltd v W Maher and Sons Ltd
[2016] EWHC 1148 (TCC) Sir Robert Akenhead,
a former head the TCC and sitting as a Judge
of the Court in this case, addressed two points
of significant interest to those involved in the
agreement/settling of final accounts and/or
adjudication.
Background
Murphy was engaged as a sub-contractor by
Balfour Beatty Civil Engineering Ltd in 2013 to
carry out shaft and tunnel work on what was
called the Man Trunk 0178/0222 project at
Trafford Park, Manchester. By a sub-sub-
contract made in February 2014, Murphy
engaged Maher to provide “"all labour plant,
material and supervision”" to carry out spoil
(or arisings) removal in relation to this project
and in particular to piling, shaft and tunnel
excavations. The sub-sub-contract contained
much of the NEC 3 Engineering and
Construction Subcontract form, including a
term that “Any dispute arising under or in

19 | P a g e
connection with this subcontract is referred to
and decided by the Adjudicator”.
Maher started work in January 2014 and
submitted to Murphy its final application
(No21) on 28 September 2015 for a gross sum
of £763,980.24. Murphy, it is said, did not
acknowledge or respond to this Application
for Payment No21. A series of discussions
followed and agreement was apparently
reached in November 2015 on a final account
settlement agreement in the gross sum of
£720,000.00. Murphy did not pay and Maher
referred the dispute to adjudication in April
2016.
In response to Maher’s reference to
adjudication, Murphy sought declarations on
the following issues in Part 8 proceedings in
the TCC:
Issue No 1
• Due to the TCC being identified as the
Adjudicator Nominating Body (note
the TCC has no statutory power to
appoint an adjudicator) in the sub-
sub-contract the adjudication
provisions of the sub-sub-contract
could not apply and therefore the
adjudication provisions of the Scheme
for Construction Contracts (“the
Scheme”) should apply (note that the
Scheme only permits disputes arising
“under the contract” to be referred to
adjudication, as opposed to the
provisions of the sub-sub-contract
which permitted disputes “under or in
connection with” the sub-sub-
contract to be referred to
adjudication).
Issue No 2
• The alleged settlement agreement
was not a matter arising under the
sub-sub-contract and was in fact a
separate stand-alone agreement;
therefore a dispute about the
settlement agreement was not a
dispute under the sub-sub-contract.
Decision
Issue No 1
Sir Robert Akenhead decided that,
notwithstanding the error relating to the
Adjudicator Nominating Body, the
adjudication provisions of the sub-sub-
contract remained operable. He said that:
“The only possible question here is
if there is no agreed adjudicator
and no adjudicator appointing
authority: can it be said that there
was provided “"a timetable with
the object of securing the
appointment of the adjudicator
and referral of the dispute to him
within 7 days of such notice”". As

20 | P a g e
a matter of construction of the
sub-sub-contract, it is clear that
the parties agreed unequivocally
that there could and should be
adjudication and that, at least in
the absence of an ad hoc
agreement on a particular
individual, it should be way of a
responsible institution which
offered that service; the obvious
such body is the RICS but the ICE,
the RIBA, TECBAR and TeCSA are
equally responsible.”
Accordingly, the adjudicator had jurisdiction
to decide any dispute “under or in connection
with” the sub-sub-contract and thus had
jurisdiction to decide any dispute in relation
to the alleged settlement agreement (note it
was common ground that any dispute relating
to the alleged settlement was a dispute in
connection with the sub-sub-contract).
Issue No2
On the basis of previous judgements it had
been widely thought that, particularly in
adjudication, the words “arising under”
should be construed much more narrowly
than “arising under or in connection with”,
and that a dispute about a settlement
agreement would generally fall into the latter
category (as was common ground in this
case). Accordingly, it was widely thought that
in many instances an adjudicator would not
have jurisdiction to decide a dispute relating
to a settlement agreement when the contract
only allowed for adjudication in relation to
disputes “under the contract” or where the
Scheme was stated to apply.
However, appearing to rely heavily on Fiona
Trust v Privalov [2007] UKHL 40, Sir Robert
Akenhead stated that
“It is most doubtful that
Parliament and the parties would
want as a rational legislature and
business people respectively
“"only some of the questions
arising out of their relationship
were to be submitted to
[adjudication] and others were to
be decided by”" their chosen
tribunal for the final dispute
resolution. If there “"is no rational
basis upon which [Parliament
and] businessmen would be likely
to wish to have questions”" about
entitlement under the original
contract to be “"decided by one
tribunal and questions about”"
whether some or more of claims
arising under that contract had
been “"decided by another, one
would need to find very clear
language before deciding that
they must have had such an
intention”".”; and

21 | P a g e
“There is no logical reason for
thinking that there should be any
difference in meaning or
application between dispute
resolution clauses (or even dispute
resolution arrangements
adumbrated in a statutory
instrument such as the Scheme)
whether in arbitration or
adjudication which call for
disputes arising “"under”" the
contractual or statutorily imposed
dispute resolution regime to be
treated jurisdictionally differently
from those “"arising “"out of”" or
“"in connection with”" the
underlying regime.”
Accordingly, he decided that all disputes in
relation to the sub-sub-contract were disputes
arising under the sub-sub-contract and that
the adjudicator would have jurisdiction to
decide any such disputes. This, of course,
meant that even if the adjudication provisions
of the sub-sub-contract had not remained
operable, in any event the adjudicator would
have jurisdiction pursuant to the Scheme to
decide a dispute relating to the alleged
settlement agreement.
Finally, whilst not having to decide the point,
Sir Robert Akenhead stated in obiter that
“If I had to decide the issue, I would have said
that the alleged agreement of November
2015 was in effect a variation of the earlier
agreement”.
Conclusion
In his judgement Sir Robert Akenhead may
well have extended the jurisdiction of
adjudicators to decide all disputes arising in
connection with a contract notwithstanding
that the contract may provide, either
expressly or by reference to the Scheme, that
only disputes “arising under” the contract
may be referred to adjudication. Additionally,
by way of his statement in obiter, he may well
have given authority that, absent any express
provisions to the contrary, final account
settlement agreements are to be considered
as variations to the underlying contract and
thus any disputes surrounding such
agreements should be considered as matters
arising under the underlying contract (as
opposed to in connection with it).
Accordingly, following Sir Robert Akenhead’s
judgement it may be considered that
adjudicators are now far more likely to have
jurisdiction to decide disputes in relation to
final account settlement agreements than
they have been considered to have in the
past. It will be therefore be very interesting
to see how many adjudicator’s decisions in
relation to final account settlement
agreements come before the TCC in
enforcement or Part 8 proceedings following
this judgement. Only time will tell!

22 | P a g e
Dean Sayers is a Director with Sayers
Commercial Ltd, and is available to sit as an
adjudicator and arbitrator.
dean@sayerscommercial.co.uk
TCC JUDGEMENTS 2020 ENGLAND
AND WALES HIGH COURT
(TECHNOLOGY AND
CONSTRUCTION COURT) DECISIONS
JANUARY
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)
SCL INTERNATIONAL CONFERENCE
2020
The Society of Construction Law 9th
International Conference is being held at the
Cordis Hotel Auckland from the 4th
to the 6th
November 2020.
The Right Honourable Lord Justice Coulson
will be a keynote speaker at the Conference.
http://www.constructionlaw2020.com/scl20

23 | P a g e
Wednesday, 19 February 2020
London
PFI Adjudications and How to Win Them
Thursday, 20 February 2020
Manchester
Adjudication Q&A Panel (Topic(s) tbc)
Tuesday, 21 April 2020
Glasgow
Annual Case Law Update
DRBF CONFERENCES 2020
The DRBF International Conference takes
place from the 27 to 29 May 2020 at the
Radisson Blu Cape Town, South Africa.

24 | P a g e
FIDIC CONFERENCES 2020
ICC-FIDIC International Construction
Contracts Conference 2020, São Paulo, Brazil
10 February, 2020 - 08:00 to 11 February,
2020 - 19:30 https://law.knect365.com/fidic-
international-contract-users/
FIDIC GAMA Conference 2020, Gaborone,
Botswana 19 April, 2020 - 08:30 to 21 April,
2020 - 19:30 http://www.fidicgama2020.com/
FIDIC INFRASTRUCTURE
CONFERENCE 2020
The next FIDIC Annual International
Infrastructure Conference will be in Geneva
on 13 September 2020 to 15 September 2020.
http://fidic.org/events/conferences/annual-
conference-eoi

25 | P a g e
UK ADJUDICATORS 2020
EDINBURGH ADJUDICATION &
ARBITRATION CONFERENCE
The 2020 conference takes place on the 6
March 2020 at the Royal Society of Edinburgh
at 25-26 George Street, Edinburgh. It is a full
day conference with lunch and refreshments
provided.
UKA Panel members can book a reduced-price
ticket through the Eventbrite booking
website:
https://www.eventbrite.com/e/2020-
edinburgh-adjudication-arbitration-
conference-tickets-81052019773?utm-
medium=discovery&utm-
campaign=social&utm-
content=attendeeshare&aff=escb&utm-
source=cp&utm-term=listing
UK ADJUDICATORS 2020 LONDON
ADJUDICATION & ARBITRATION
CONFERENCE
The 2020 conference takes place on the 20
August 2020 in Central London.
UKA Panel members can book a reduced-price
ticket through the Eventbrite booking website
which will go live later in the year.

UK Adjudicators February 2020 newsletter

Recommended

Recommended

More Related Content

Similar to UK Adjudicators February 2020 newsletter

Similar to UK Adjudicators February 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 February 2020 newsletter