UK Adjudicators April 2019 newsletter

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APRIL 2019 NEWSLETTER
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EDITORS’ COMMENTS
Our second event of the year, the 2019
Edinburgh Adjudication and Arbitration
Conference took place at the Scottish
Arbitration Centre in Edinburgh on the 15th
March.
Panellists speaking at the conference included
Lisa Cattanach of CDR, Iain Aitkinson of
Ankura, Natasha Peter of Gide and Catherine
Gilbert of Temple Bright. Dean Sayers and Neil
Boothroyd attended the conference. It was a
very useful profile raising exercise for both
the body and the panellists that took part.
The 2019 London Adjudication and Arbitration
Conference is taking place at 12 Bloomsbury
Square, London on the 22 August 2019.
Tickets will go on sale in April and UK
Adjudicator panellists will be able to purchase
discounted tickets. Supporting organisations
for the event are being sought and currently
we have speakers from Keating, Blake
Morgan, Augusta Ventures, Ankura,
Addleshaw Goddard and Fenwick Elliot
confirmed with numerous others expressing
an interest to take part.
We hope to hold further events in Bristol,
Birmingham, Manchester and Leeds, if you
are interested in speaking or acting as a
sponsor please do get in touch.
We have expressed interest in tendering for
the Ontario Adjudicator Nominating Authority
process currently underway in Canada; and if
successful will be looking for trainers to
support this.
We will be hosting a table at the SCL
Manchester lunch at the Lowry Hotel, if you
can join us it will be an ideal way to promote
the panel to our industry peers.
Sean Gibbs is a director with Hanscomb
lntercontinental and is available to sit as an
arbitrator, adjudicator, mediator, quantum
expert and dispute board member.
sean.gibbs@hanscombintercontinental.co.uk

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M DAVENPORT BUILDERS LTD V
GREER & ANOR [2019] EWHC 318
(TCC)
The Claimant and Defendants entered into a
construction contract that made no provisions
for adjudication or payment, as such; section
108(2) and 109 of the Construction Act were
implied into their contract.
The Claimant submitted a payment
application for the final account, and the
ensuing dispute was referred to adjudication.
Two adjudications took place, and in the first
adjudication, it was held that the Claimant
was entitled to the sum on its payment
application of £106,160.84, because the
Defendants had failed to issue either a
payment notice or a pay less notice and as
such the notified sum fell due to be paid.
Six days after the first Adjudicator’s decision,
the Defendants went on to commence a
second adjudication to determine the true
value of the works. The second adjudicator,
decided that no sum was due to the Claimant
based on a valuation of the work.
The Defendant did not pay the sum awarded
in the first adjudication and the Claimant
applied to the TCC for enforcement.
The TCC had to decide if the Defendants were
obliged to make the payment from the first
adjudication or was the result of the second
adjudication able to cancel out the payment
found to be due by way of set off or as a
counter-claim.
It was held that the Defendants had to pay
the sum awarded in the first adjudication
award despite the second adjudication as the
Defendants were subject to an immediate
payment obligation, and having failed to
discharge that obligation, they were not
entitled to rely on the result of the second
adjudication before the court.
The principle established in Grove is that a
party can not rely upon the result of a true
value adjudication in enforcement if it has not
first discharged its payment obligation.

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MORE THAN ONE ‘SMASH AND
GRAB’ TYPE CLAIM IN ONE ‘SMASH
AND GRAB’ ADJUDICATION?
Following ISG Construction Ltd v Seevic
College [2014] EWHC 4007 (TCC) most of us
are all too familiar with the concept of default
payment notices and subsequent ‘smash and
grab’ adjudications.
To recap, a default payment notice is one
either whereby a payment application has
been submitted by a payee and the payer has
failed to respond to it by way of a payment
notice and/or pay less notice, or one whereby
the payee hasn’t submitted a payment
application but in the absence of a payment
notice from the payer it has subsequently
submitted a default payment notice and the
payer has failed to respond to it by way of a
pay less notice.
At this point it is worth noting that once a
payee submits a payment application in
accordance with the contract it is precluded
from issuing a further default payment notice
in the absence of a payment notice from the
payer. There are two reasons for this: i) in the
absence of a payment notice from the payer
the payee’s payment application becomes the
default payment notice so why would it need
to issue a further notice?; and, ii) the Local
Democracy Economic Development and
Construction Act 2009 precludes it at
s.110B(4) where is says
“If –
(a) the contract permits or
requires the payee, before the
date on which the notice referred
to in subsection (1)(a) is required
by the contract to be given, to
notify the payer or a specified
person of –
(i) the sum that the payee
considers will become due on the
payment due date in respect of
the payment, and
(ii) the basis on which that sum is
calculated, and
(b) the payee gives such
notification in accordance with
the contract…….
……the payee may not give
another notice pursuant to that
subsection” [emphasis added]
This point about a further default payment
notice being precluded by LDEDCA 2009 was
also discussed by Jefford J in Jonjohnstone

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Construction Limited v Eagle Building Services
Limited [2017] EWHC 2225 (TCC).
To further recap, a ‘smash and grab’
adjudication is one whereby the payee, in the
absence of a payment notice and/or pay less
notice from the payer, relies upon its default
payment notice to seek full payment of the
sum set out therein without question as to
whether the sum claimed therein represents
the ‘true value’ of the works undertaken. In
other words, it matters not that the sum
claimed in the default payment notice may be
overstated when considered against the ‘true
value’ of the works undertaken; the payee is
entitled to payment of the sum claimed in any
event (unless, of course, there exists some
type of fraud which can be proven). This was
the correct legal position found in ISG
Construction which, to some extent, has later
been developed by the Court of Appeal in S&T
(UK) Ltd v Grove Developments Ltd [2018]
EWCA Civ 2448 but with the principle as to
the obligation to pay the sum stated as due in
a default payment notice remaining
unaffected. All this, of course, supports the
generally accepted proposition that cashflow
is the lifeblood of the construction industry
and should be protected (also commonly
known as the ‘pay now argue later’ principle).
So, what happens when a payee has
submitted multiple payment applications and
the payer has failed to serve payment notices
and/or pay less notices in response to any of
them? For example, what happens when the
payee has submitted payment applications for
works undertaken at the same project in May,
June and July in a given year and the payer
has failed to respond to any of them by way of
payment notices and/or pay less notices? In
view of what has been said above, clearly
each payment application becomes a default
payment notice and as a matter of law the
payee is entitled to the sum claimed in each
such notice.
However, if the payer fails to pay any of the
sums stated as due in each default payment
notice how does the payee go about enforcing
its right to such payments? Can it seek
payment of each sum in one adjudication, or
must it commence three separate
adjudications for payment of each sum
respectively?
In Witney Town Council v Beam Construction
(Cheltenham) Limited [2011] EWHC 2332 the
referring party referred a dispute as to sums
due to it following multiple payment
applications which were not met by the payer.
However, the dispute in this case did not
surround sums payable on a ‘smash and grab’
basis but sums due pertaining to the ‘true
value’ of the works undertaken. Whilst it was
argued by the responding party that sums due
under multiple payment applications
amounted to more than one dispute, on the
facts Akenhead J concluded that
“I have formed a very clear view
that there was in reality only one
dispute between the parties by
the time of the Notice of
Adjudication and only one dispute

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which was referred to
adjudication. That dispute was as
to what was due and owing to
Beam”
In my view Witney Town can be distinguished
from the circumstances I describe earlier
quite simply because it relates to the total
‘true value’ due for payment for all the works
undertaken (what may be commonly termed
a ‘final account’), not a series of sums due
pursuant to a series of default payment
notices.
More recently, in the Scottish case of Siteman
Painting and Decorating Services Ltd v Simply
Construction (UK) Ltd [2018] SC GLA 64 the
referring party also referred a dispute as to
sums due following multiple payment
applications which were not met by the payer.
Again, however, the dispute in this case did
not surround sums payable on a ‘smash and
grab’ basis but sums due pertaining to the
‘true value’ of the works undertaken. Whilst
it was again argued by the responding party
that sums due under multiple payment
applications amounted to more than one
dispute, on the facts Sheriff Reid concluded
that
“The present case is
comparatively straightforward. In
my judgment, a single dispute
was referred to adjudication,
namely, what sum was due to the
pursuer "in respect of the proper
value of the works undertaken by
it"
In Siteman Sheriff Reid also referred to
Whiteways Contractors (Sussex) Ltd v Impresa
Castelli Construction UK Ltd [2000] EWHC 2
and Barr Ltd v Law Mining Ltd 2003 SLT 488
which both involved various claims for
payment.
Again, in my view Siteman and the authorities
cited therein can be distinguished from the
circumstances I describe earlier quite simply
because they relate to the total ‘true value’
due for payment for all the works undertaken,
not a series of sums due pursuant to a series
of default payment notices.
So, where a payee has submitted multiple
payment applications and the payer has failed
to serve payments notices and/or pay less
notices to any of them, what can the payee do
if the payer fails to pay each of the sums due?
Does the law allow the payee to seek
payment of each sum due in one adjudication,
or must the payee commence a separate
adjudication for payment of each sum due? It
is arguable that the answer to the latter
question is open to debate because it is a
question which has not yet been before the
courts.
However, what I can tell you is that in a recent
adjudication where my client was faced with
such circumstances as the payer and
responding party, I sought the adjudicator’s
resignation on the basis that the ‘smash and
grab’ nature of the proposed adjudication
meant that it must be distinguished from
Witney Town, Siteman, Whiteways and Barr,
and that in the circumstances it was clear that

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more than one dispute had been referred to
adjudication (in essence the referring party
had attempted to pursue three separate
‘smash and grab’ type claims in one
adjudication, presumably to avoid the costs of
three separate adjudication proceedings).
The referring party sought to dismiss my
jurisdictional challenge on the basis that I had
not cited any authority in support of the
position taken on jurisdiction (as noted
before, there aren’t any authorities on this
specific point!!). However, the adjudicator
agreed with me and resigned.
In view of all that is said above and in
summary, I would suggest that if you are ever
faced with a set of circumstances whereby
you, as the payee, are entitled to more than
one payment on a ‘smash and grab’ basis then
you should consider referring each sum due
as a separate dispute in separate adjudication
proceedings rather than attempting to refer
multiple sums due on a ‘smash and grab’ basis
in one adjudication. Similarly, if you are ever
faced with these circumstances as the payer
and responding party in a proposed
adjudication, I would suggest that you have
the right to seek the adjudicator’s resignation
on the basis that more than one dispute has
been referred in one adjudication.
Of course, if the dispute is about the ‘true
value’ of the works undertaken then that is a
different matter altogether and will need to
be considered by reference to the specific
facts in each case.
Dean is a Director with Sayers Commercial
Ltd, and is available to sit as an adjudicator
and arbitrator..
dean@sayerscommercial.co.uk
PAYMENT CLAIMS FOR QUANTITY
SURVEYING UNDER THE
CONSTRUCTION CONTRACTS ACT
2002 (NZ)
Since the 1 September 2016, “construction
work” has been broadened to include design,
engineering and quantity surveying work.
Payees serve “Payment Claims” for work
done. The payer must respond within strict
timeframes by paying in full, or by providing a
“Payment Schedule” and paying a lesser
amount set out in that Payment Schedule.
A payment claim must comply the following
to be recognised as a payment claim:
a) In writing; and
b) Contain sufficient details to identify the
contract to which it relates; and
c) Identify the work and relevant period to
which the payment claim relates; and
d) State a claimed amount and the due date
for payment; and

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e) Indicate how the payee calculated the
claimed amount (eg by attaching or
incorporating a spreadsheet table); and
f) State on it that it is a payment claim made
under the CCA; and
g) Be accompanied by the prescribed
information contained in Form 1
Form 1 Information that must
accompany all payment claims
r 4
Section 20, Construction Contracts Act 2002
Important notice
What is this?
This notice is attached to a claim for
a payment (a payment claim) under
the Construction Contracts Act 2002
(the Act).
The person who sent this payment
claim (the claimant) is claiming to be
entitled to a payment for, or in
relation to, the construction work
carried out to date under a
construction contract.
Whether that person is entitled to a
payment, and how much they are
entitled to, will depend on whether
you have a construction contract and
what you have agreed between
yourselves about payments. If you
haven’t agreed on payments, there
are default provisions in the Act.
What should I do with this payment claim?
You can either—
 pay the amount claimed in the
payment claim (in full) on or
before the due date for
payment; or
 if you dispute the payment
claim, send the claimant a
written payment schedule that
complies with section 21 of the
Act (a payment schedule)
stating the amount you are
prepared to pay instead (which
could be nothing).
The due date for a payment is the
date agreed between you and the
claimant. That due date must be set
out in the payment claim. If you
haven’t agreed on a due date, then
the Act says that a payment is due
within 20 working days after the
payment claim is served on you. (For
the purposes of the Act, a working
day is any day other than a
Saturday, a Sunday, a public holiday,
or any day from 24 December to
5 January.)

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When do I have to act?
You should act promptly. Otherwise,
you may lose the right to object.
What if I do nothing?
If you don’t pay the amount claimed
by the due date for payment or send
a payment schedule indicating what
you will pay instead, the claimant can
go to court to recover the unpaid
amount from you as a debt owed. In
addition, the court may decide that
you have to pay the claimant’s costs
for bringing the court case.
Can I say that I will not pay, or pay less than, the
claimed amount?
Yes, by sending a written payment
schedule.
Note: If you do not send a written
payment schedule, the claimant can
bring court proceedings against you
or refer the matter to adjudication (or
both).
How do I say I will not pay, or pay less than, the
claimed amount?
To say that you will pay nothing or
indicate what you will pay instead,
you must send the claimant a written
payment schedule.
You must indicate the amount that
you are prepared to pay, which could
be nothing. This amount is called the
scheduled amount.
If the scheduled amount is less than
the claimed amount, you must
explain in the payment schedule—
 how you calculated the
scheduled amount; and
 why the scheduled amount is
less than the claimed amount;
and
 your reason or reasons for not
paying the full amount
claimed.
Note: The written payment schedule
must also state which payment claim
the payment schedule relates to.
Note: If you state in the payment
schedule that you will pay less than
the claimed amount or pay nothing at
all, the claimant may refer the dispute
about how much is owing for
adjudication.
How long do I have?
You must send a payment schedule
by the date agreed in the contract or,
if no date was agreed, within 20
working days after the payment claim
was served on you.

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If I say I will pay another amount instead, when do
I have to pay it?
You must still pay the scheduled
amount by the due date for payment.
What if I don’t pay the scheduled amount when I
say I will?
If you send a payment schedule but
do not pay the scheduled amount by
the due date, the claimant can go to
court to recover the unpaid amount
from you as a debt owed or refer the
matter to adjudication (or both).
Note: A court may also require you
to pay the claimant’s costs.
Advice
Important: If there is anything in
this notice that you do not
understand or if you want advice
about what to do, you should
consult a lawyer immediately.
It seems very straight forward and logical and
arguably highlights areas of improvement for
the UK.
BEACH HOMES LTD VS HAZELL AND
ANOTHER [2018] EWHC 1847 (TCC)
THE FULL TEXT OF THE JUDGMENT OF
JONATHAN DAVIS QC
On 28th June 2018 I heard applications in this
case and in a related case in which Douglas
Harold Judkins is the Claimant, Mr and Mrs
Stephen Hazell are the First Defendants and
Beach Homes Limited are the Second
Defendants. That case is numbered Claim No.
HT-2017-000259. I have prepared a separate
Judgment in that case which I will hand down
on the same occasion as the Judgment in this
case.
On 12th August 2014, Beach Homes Limited
and Mr and Mrs Hazell entered into a written
contract for Beach Homes Limited to carry out
construction works on a house at Moor Green
House, Lower Sandhurst Road,
Finchampstead, Wokingham, Berkshire, RG40
3TH.
A dispute arose between the Parties as to
whether the works were complete and as to
the value of the Final Account. On 19th
October 2016, Beach Homes Limited referred
the dispute to adjudication and expert
determination. Mr Judkins was appointed by
the RICS as the Adjudicator and Expert for the
dispute.

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On 7th April 2017, Mr Judkins gave his
Decision to the Parties. He decided that Mr
and Mrs Hazell must pay Beach Homes
Limited the sum of £128,826.04 by no later
than noon on 21st April 2017 and a further
sum of £4,500.09 in respect of interest by no
later than noon on 21st April 2017 plus £8.82
per day from 8th April 2017 until payment is
made together with immediate payment of a
further sum of £4,128.
Mr Judkins also decided that in respect of the
Expert Determination element, his fees should
be divided equally between the Parties and in
respect of the Adjudication element they
should be borne in their entirety by Mr and
Mrs Hazell. Thus, the debt owed by Mr and
Mrs Hazell in respect of the Adjudication work
is £22,616.40. It is that sum plus interest
which Mr Judkins seeks to recover in the
related application which I heard.
With that introduction, I return to this claim.
On 5th July 2017, the Claimant issued a Claim
Form to enforce the Adjudicator’s / Expert’s
Decision and on 10th July 2017 made an
application for summary judgment in the
usual way.
On 12th July 2017, O’Farrell J abridged time
for the Defendants to file an Acknowledgment
of Service to four days and gave Directions.
The Claimant served documents on the
Defendants with a deemed date of service of
18th July 2017. The Defendants did not file an
Acknowledgment of Service and the Court
entered default Judgment on 3rd August
2017.
On 9th August 2017, the Claimant applied for
a Charging Order over the property. On 23rd
August 2017, Jefford J granted an Interim
Charging Order. The Claimant served the
Interim Charging Order on the Defendants
and the affected parties.
In the meantime, on the 25th July 2017, the
Defendants had written to the Court saying
that they had just returned to the United
Kingdom and wished to defend the claim.
They then made an application to the Court
seeking time to be given for them to apply for
Legal Aid, to prepare and make an application
to set aside the Adjudication and Award and
Default Judgment. The Application Notice was
dated 13th August 2017. It was sent by
Registered Post but did not reach the Court
until 13th December 2017.

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On 14th December 2017, O’Farrell J gave
directions for the Parties to file evidence and
for a hearing to be listed on 2nd February
2018.
In response to the Order, the Defendants
lodged a lengthy document which
commented on the Decision paragraph by
paragraph and a further document setting out
various complaints. The Claimant commented
on that response. Last, on 29th January 2018,
the Defendants filed further material.
The hearing of 2nd February 2018 was
adjourned to 11th May 2018 and
subsequently adjourned to 28th June 2018.
Thus, before me, there was the Defendants’
application to set Judgment aside, a claim that
the Adjudication/expert determination
Decision of Mr Judkins was invalid and/or
should not be enforced and the Claimant’s
application for a Final Charging Order.
At the conclusion of the hearing, I refused the
application to set the Judgment aside, I
refused to make any declaration that the
Decision of Mr Judkins was invalid and/or
should not be enforced and I granted the
Claimant’s application for a Final Charging
Order. I ordered the Defendants to pay the
costs of this action which I summarily
assessed. I said I would give my reasons in a
written Judgment to be handed down. This is
that Judgment.
Mr Newman had been instructed very shortly
before the hearing but he was able to produce
a very helpful Skeleton Argument. In oral
argument, he took me carefully and firmly
through all the points which could be made
on behalf of Mr and Mrs Hazell but authority
and principle were against him. The document
which the Defendants filed in response to the
Order of O’Farrell J is at pages 150-163 of the
Bundle. Mr Newman drew my attention in
particular to paragraphs 1.8, 1.17, 2.2, 2.4,
2.5, 2.6, 2.11, 2.13, 2.16, 2.25 and 2.41 of that
document. A further document put in by the
Defendants is at pages 164-168: Mr Newman
drew my attention to paragraphs 1, 2, 3, 5 and
the conclusion at sub-paragraphs 1-4 on page
168.
The application to set aside the Judgment is
under CPR Part 13.3. The Defendants are
required to show that they have (a) “a real
prospect of successfully defending the claim”

12 | P a g e
or (b) there is “some other good reason”. The
relevant tests for (a) and (b) are to be found in
the White Book 2018 at Notes 13.3.1 and
13.3.2. The Court is also required to consider
the promptness of the application to set aside
(see CPR Part 13.3(2) and the Note at 13.3.3).
As mentioned at paragraph 11 above, the
application to set aside was prepared on 13th
August 2017 but only reached the Court on
13th December 2017. I made it plain to Mr
Newman at the hearing that I would deal with
the application to set aside on the basis that
the Defendants made the application
promptly.
I have considered closely the detailed
argument put forward by the Defendants in
all of the documentation which they have put
before the Court. I have had particular regard
to the paragraphs which Mr Newman drew to
my attention which I mention at paragraph 17
above.
In Gosvenor London Limited v. Aygun
Aluminium UK Limited [2018] EWHC 227,
Fraser J said:
“As is well known, and as was stated in Amey
Wye Valley Limited v. The County of
Herefordshire District Council [2016] 2368
EWHC (TCC) at [30], as a way of reminder to
parties generally rather than stating any
innovative principle:
“Adjudicator’s decisions will be enforced by
Courts, regardless of errors of fact or law. This
has been stated many times. Carillion v.
Devonport Royal Dockyard [2005] EWCA Civ.
1358 is the most often quoted appellate
authority”
“There are so many other well-known cases
that state, re-state, and emphasise this
fundamental point that those who practice in
this field barely need such reminders Macob
Civil Engineering Limited v. Morrison
Construction Limited. They include the first
judgment on this topic, by Dyson J (as he then
was) in [1999] EWHC 254 (TCC) [1999] BLR 93,
the first Court of Appeal authority in
Bouygues (UK) Limited v. Dahl-Jensen (UK)
Limited [2000] EWCA Civ. 1358 [2000] BLR 49;
and an enormous number since.”

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In his written Skeleton Argument, Mr
Newman reduced the lengthy and detailed
arguments presented by the Defendants to
three arguments:
(i) Mr Judkins did not act in accordance with
the Notice of Intention to Refer to
Adjudication;
(ii) Mr Judkins misconstrued the variations
clause; and
(iii) The Adjudication clause was unfair and,
thus, void under the Unfair Terms in
Consumer Contracts Regulations 1999.
I think it also fair to add a fourth argument
which can be summarised as an allegation
that Mr Judkins reached the wrong Decision.
The First Argument
It is said that the Adjudicator’s responsibilities
derive from the Notice of Intention to Refer
Dispute to Adjudication. The Notice itself
makes no reference to the expert
determination provision and relies entirely
upon the concluding two lines to the
Variations’ clause. The Notice further
suggested that the Adjudication should be
conducted in accordance with the Scheme for
Construction Contracts (England and Wales)
Regulations 1998, including paragraph 25. At
no stage in preparing the Notice did the
Claimant refer to the expert determination
provision, nor did it invite the RICS to make
such an appointment. Yet, in his decision the
Adjudicator headed the document “In the
matter of an expert determination and in the
matter of adjudication”. In the body of the
Decision, the Adjudicator wrote
“the contract therefore provides for disputes
concerning the value of variations to be
resolved by expert determination which is
final, conclusive and binding on the parties,
and for all our disputes to be determined by
adjudication”.
The argument is that the Adjudicator was
wrong to conclude that he could embark upon
an expert determination in circumstances in
which the Claimant had not placed it within
his remit. Therefore, the entirety of his
activity as an expert was conducted without
jurisdiction.

14 | P a g e
I accept that in a document, which is at page
235 of the Bundle, which was put before the
Adjudicator, the Defendant said “no authority
was given for Beach Homes Limited to start an
adjudication process and this is not implicit to
the contract without our approval”. However,
thereafter, the Defendants played a full part
in the Adjudication and expert determination
in the knowledge that Mr Judkins believed
that he had jurisdiction to conduct the Expert
Determination aspect and the Adjudication
aspect. The short answer, therefore, to this
argument is that they waived any
jurisdictional argument that they might have
had.
The Second Argument
The Contract provides:
“Variations
Should the client require the contract work to
be varied he shall issue a formal instruction, in
writing, setting out what is required. If a
verbal instruction is given in the first instance
we will confirm this in writing to the client and
this will have the same effect.
All variations and extra work to be calculated
on a cost plus profit and overheads at 25%
basis unless a rate has been agreed prior and
a variation order has been signed before
commencement of extra works. Should
agreement not be possible at the final stage,
the value of the variations to be ascertained
by an independent quantity surveyor whose
valuation shall be binding. The quantity
surveyor’s fees shall be divided equally and
paid by each party.
In the event of a dispute, it shall be agreed
that it would be resolved through
adjudication proceedings and that the
adjudicator should be appointed by the RCIS
[sic].”
The Defendants argued before the
Adjudicator and Mr Newman argued before
me that the clause relates to Variations only,
the value of which must be agreed before the
work is carried out but, if the cost cannot be
so agreed, valuation of the variations is to be
determined by an independent quantity
surveyor. The Defendants argue that the
procedure does not apply to works they claim
to have been already carried out and that the
Claimant had no right to refer a question to
adjudication regarding the completed
variations “or anything else for that matter”.

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Mr Judkins concluded, at paragraph 2.14 of
his Decision,
“when objectively construed, it is the clear
intention of the Contract that where the
parties have failed to agree the value of any
Variations the value of those Variations shall
be determined at final account stage by an
independent quantity surveyor acting as an
expert determiner”.
He then concluded, at paragraph 2.16
“the second and distinctly separate, part of
the dispute resolution process concerns
disputes other than those relating to
Variations. In my opinion, it is the clearly
expressed intention of the Contract that all
disputes other than those relating to
Variations are to be determined by reference
to Adjudication. I reject the Defendants’
submission that it is only disputes relating to
the value of the Variations that may be so
referred. The reason is that the Contract
provides that disputes relating to the value of
Variations will be determined by an
independent quantity surveyor whose
decision will be binding on the Parties as a
matter of contract. The Parties having agreed
to accept the determination of the surveyor
as binding as, in any event, an expert
determination is so binding on the parties,
there cannot be any dispute concerning the
surveyor’s determination capable of reference
to Adjudication. Therefore, the Adjudication
provisions refer to all other matters in dispute
between the Parties.”
In my Judgment, although it is unnecessary for
me to decide the issue, Mr Judkins is clearly
right in that interpretation. But even if he be
wrong, it would make no difference. As set
out above, it is not the role of the Court to
second guess the Arbitrator’s Decision when
considering the matter of enforcement. The
Decision is to be enforced irrespective of any
errors of fact or law. The remedy for the
Defendants, if they wish, is to litigate the
issue.
The Third Argument
This too was raised before the Adjudicator
and he rejected also any arguments based
upon the Unfair Terms in Consumer Contracts
Regulations.

16 | P a g e
The TCC has considered whether or not an
Adjudication clause complies with the
UTCCR’s in a number of previous cases
including Bryen & Langley v. Boston [2005]
BLR 28, Domsalla v. Dyason [2007] BLR 348
and Picardi v. Cuniberti [2003] BLR 487. In the
latter case, HHJ Toulmin CMG QC said obiter
that he would have found an adjudication
clause in an RIBA form was unfair under the
UTCCR’s. However, in the remaining two
cases, the Judges dismissed arguments to the
effect that the UTCCR’s rendered the
adjudication clauses unfair.
Again, in my judgment, Mr Judkins reached
the right answer, although it is unnecessary
for me to decide the point. However, again, it
would not matter if I was of a different view,
for the reasons expressed above.
The Fourth Argument
This can be dismissed shortly. Whether or not
the detail of Mr Judkins’ Decision is right or
wrong is of no relevance in an enforcement
action.
For completeness, I mention an additional
argument raised by Mr Newman at
paragraphs 7 and 8 of his Skeleton Argument
concerning the agreement itself. Mr Newman
produced, at Appendix 1 to his Skeleton
Argument, a new document which he told me,
on instructions, was the correct Contract. That
was not an argument which was put before
Mr Judkins. Appendix 1 was not produced in
the Adjudication, was not produced in
response to the Order made by O’Farrell J and
was not referred to in any of the lengthy and
detailed submissions put in by the
Defendants. I placed no reliance upon it.
Accordingly, I refused the application to set
aside the Judgment and to make any
declaration or decision that the Decision of
Mr Judkins was invalid.
Last, Mr Newman invited me to delay making
a Final Charging Order to permit the
Defendants to endeavour to arrange a re-
financing package. I refused that application.
There has been a long period of time whilst
these proceedings have been on foot when
they could have taken steps to re-finance
themselves in order to pay the money which,
on Mr Judkins’ Decision, is owed but there
was no evidence that they had made any
attempt to do so. I made a Final Charging
Order.

17 | P a g e
DRBF CONFERENCES 2019
DRBF’s Central and Eastern Europe
Conference and Workshops in Bucharest,
Romania March 25-27 2019
"The Life Cycle of a DAB / DAAB: FIDIC 2017
vs. FIDIC 1999"
Sessions will give an in-depth look at the
DAAB process under the FIDIC 2017 contracts
and how to implement them, with an
emphasis on specifics of the region. Through
innovative, engaging workshops and
presentations, experts will review practical
aspects of DBs.
http://www.cvent.com/events/drbf-
bucharest-2019-central-eastern-europe-
conference-and-workshops/event-summary-
942ab9d8b03541259e2407d3d6ab7f8e.aspx?i
=625274d3-0882-4d66-ba54-1c74abd16a70
DRBF 19th Annual International Conference:
Berlin, Germany May 22 - 24, 2019
http://www.drb.org/events/calendar/
DRBF Northwest Regional Conference:
Seattle, Washington, USA June 06 - 07, 2019
http://www.drb.org/events/calendar/

18 | P a g e
ADJUDICATION SOCIETY
NI CONSTRUCTION LAW CONFERENCE,
BELFAST
Friday, 5 April, 2019 8.30am for 9am
Topics include: Evaluating Evidence; Payless
Notices; Dealing with delays; Expert Evidence;
Professional Negligence and many more
Speakers include: The Honourable Mr Justice
Horner; Anneliese Day QC; Michael
Humphreys QC; Jackie Simpson QC; Rob
McCausland BL; Craig Dunford BL; Dr David
Sharpe BL
ANNUAL CONFERENCE 2019
Thursday, 7 November, 2019 9.30 for 10am
The Society's Eighteenth Annual Conference
will be held at the Hilton London
Metropole,225 Edgware Rd, Paddington,
London W21JU.
SOCIETY OF CONSTRUCTION LAW
(UK)
Mission impossible? Dealing with witness
and expert evidence
03 April 2019 - Cardiff
5.30 for 6.00pm
Speakers: Marion Smith QC and Melissa
Shipley
Venue: Blake Morgan, One Central Square,
Cardiff CF10 1FS
Organiser(s): Rachel Gwilliam & Sean Gibbs
Adjudication of construction professional
negligence claims
01 May 2019 - Cardiff
5.30 for 6.00pm
Speaker(s): Ebony Alleyne, Hardwicke
Chair: Sean Gibbs/Rachel Gwilliam
Venue: Blake Morgan, One Central Square,
Cardiff CF10 1FS
Organiser(s): Rachel Gwilliam & Sean Gibbs

19 | P a g e
FIDIC CONFERENCES 2019
The FIDIC International Infrastructure
conference takes place from 8 to 10
September 2019 in Mexico City.
http://fidic2019.org/en
11th FIDIC Asia-Pacific Contract Users’
Conference, 25-27 June 2019
Main conference: Tuesday 25 and Wednesday
26 June 2019
Workshops: Monday 24 and Thursday 27 June
2019
Location: Hotel TBC, Hong Kong
3rd FIDIC Latin America Contract Users’
Conference, 10-12 September 2019
Main Conference: Wednesday 11 and
Thursday 12 September 2019
Workshops: Tuesday 10 September 2019
Location: Hotel TBC, Mexico City, Mexico
5th FIDIC Africa Contract Users’ Conference,
28-31 October 2019
Main Conference: Tuesday 29 and Wednesday
30 October 2019
Workshops: Monday 28 and Thursday 31
October 2019
Location: Avani Resort, Livingstone, Zambia
32nd FIDIC International Contract Users’
Conference, 2-5 December 2019
Main Conference: Tuesday 3 and Wednesday
4 December 2019
Workshops: Monday 2 and Thursday 5
December 2019
Location: Hotel TBC, London, UK
SCL INTERNATIONAL CONFERENCE
2020
The Society of Construction Law 9th
International Conference is being held from 4
to 6 November, 2020, in Auckland, New
Zealand. Further details can be found at :
http://www.constructionlaw2020.com/scl20

20 | P a g e
From 10-13 May 2020, the Scottish
Arbitration Centre plays host to the XXVth
International Council for Commercial
Arbitration Congress in Edinburgh.
For full information on the Congress, including
information on how to register, sponsor, or
reserve hotel accommodation, please visit the
Congress website www.icca2020.scot.
Please note that this is a newsletter
and does not provide legal advice.
Whilst every care has been taken in
the preparation of this document,
we cannot accept any liability for
any loss or damage, whether
caused by negligence or otherwise,
to any person using this document.
Independent legal advice should be
taken from a regulated lawyer.

UK Adjudicators April 2019 newsletter

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UK Adjudicators April 2019 newsletter