UK Adjudicators May 2019 Newsletter

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MAY 2019 NEWSLETTER
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EDITORS’ COMMENTS
Our third event of the year, a hosted table at
the 2019 SCL Manchester lunch takes place on
the 21 June 2019, if you can join us it will be
an ideal way to promote the panel and
yourself to our industry peers.
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 from in the UK and
overseas. Sponsorship and advertising
opportunities are highlighted in the
accompanying brochure.
We hope to hold further events in Bristol,
Birmingham, Manchester and Leeds, if you
are interested in speaking, hosting or acting as
a sponsor please do get in touch.
We have had to withdraw from tendering for
the Ontario Adjudicator Nominating Authority
which is currently underway in Canada due to
the requirement for an on demand
performance bond.
During the Vis East Moot in Hong Kong I was
able to talk with senior members of the
legislature and department for justice and it
seems highly likely that statutory adjudication
will be introduced this year.
I am standing in the SCL UK Council elections
and your votes for me would be greatly
appreciated.
https://www.scl.org.uk/council-election
Many thanks to the construction team at
Lamb Chambers for allowing us to reproduce
their case analysis and recent articles and also
to MDA Attorneys in South Africa for allowing
us to share the findings of their adjudication
survey with our readers.
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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WHAT THE LACROSSE FIRE IN
MELBOURNE, AUSTRALIA TELLS US
ABOUT ARCHITECT’S DESIGN
LIABILITY FOR FIRE SAFETY
On 24 November 2014, a resident of the
Lacrosse apartment tower in the
Docklands area of Melbourne, in the
state of Victoria in Australia, failed to
extinguish his cigarette fully when he
came home from work.
A few hours later, the smoke alarm outside his
front door activated, sending an alarm to the
Metropolitan Fire Brigade. When they arrived at
2:29am, they discovered that a fire was
travelling up the external wall cladding; within
six minutes, it had climbed from level 14 to level
21. The Fire Brigade were able to carry out a
total evacuation of the nearly 400 occupants.
The ensuing Post Incident Analysis Report (‘PIA
Report’) conducted by the Metropolitan Fire
and Emergency Services Board subsequently
linked the rapid spread of the fire to the use of
combustible external wall cladding.1
Appendix
12 of the PIA Report listed a number of similar
international high-rise fire incidents with rapid
vertical flame spreading in buildings where
metal composite cladding had been adopted: to
this list could now be added the Grenfell Tower
disaster on 14 June 2017.
On 28 February 2019, Woodward J, sitting in the
Victorian Civil and Administrative Tribunal
(‘VCAT’) handed down a detailed and extensive
judgment dealing with the civil liability of the
builder and the professional project
consultants.2
It made for “sobering reading”, as
the Association of Consulting Architects
Australia (ACA) acknowledged: there will be
“implications on the roles and responsibilities of
architects”.3
The author has analysed the broader
implications of the case in more detail
elsewhere.4
This paper will analyse the decision
to see if any lessons can be learned when it
comes to architect’s liability for fire safety in
England and Wales.
The Lacrosse
apartment: project
and design intention
and procurement
The developer of the Lacrosse tower had
entered a ‘Design and Construct’ (‘D&C’)
contract with the main contractor. The project
consultancy and design team was led by a firm

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of architects. Also in the design team were a fire
safety engineer and a building surveyor, who
had signed off on the building at different
stages.
The building itself was clad with aluminium
composite material (‘ACM’) panels. The core of
these panels contained polyethylene, a
combustible material with a high calorific
content. Woodward J found that the fire safety
engineer failed to conduct a full engineering
assessment of the Lacrosse tower and failed to
recognise that the material did not comply with
the appropriate Building Control of Australia
(‘BCA’) regulations. It was held that they
probably did not warn the architects or the
building surveyors of that fact.
The spread of the fire
The fire was started when the cigarette butt was
disposed of in a plastic container on a timber
topped outdoor table. The table itself caught
fire. The fire then ignited cardboard on top of an
air conditioning unit. The fire then developed up
to a join between two ACM panels fixed on the
wall. The panels and the combustible material
within the structure caught fire. The fire then
spread rapidly up the vertical wall and involved
balconies located above. Embers dropped down
and spread the fire to another apartment.
The fire report stated:
“The extremely vertical nature of the burn
patterns to the exterior face of the wall suggest
that the Alucobest aluminium cladding, along
with the foam lagging and the PVC pipe of the
building wall, contributed to the fire load and
the rapid spread of the fire up the vertical face
of the building to the floors and balcony areas
located above.”5
The VCAT decision on
liability
The builder was found liable to the owners for
breaches of terms in respect of the suitability of
materials, compliance with the law and fitness
for purpose implied into the D&C contract by
the Domestic Building Contracts Act 1995 (Vic).
It was therefore primarily liable to pay them
damages.
At the same time, however, a number of
different members of the project consultancy
and design team were also found to have failed
to exercise reasonable care and were hence
concurrent wrongdoers who were liable to pay a
proportion of the damages that the builder had
been ordered to pay. Woodward J apportioned
damages between those defendants pursuant to
Part IVAA of the Wrongs Act 1958: Building
Surveyors (33%), Architect (25%), Fire Engineer
(39%) and the original smoker’s share (3%).

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The role of the
architect as head
design consultant
The striking point of the decision on liability is
that the contractor was entitled to argue that it
had relied on the skill and care of the design
team, whereas the architect was not, on the
facts of the case, entitled to argue that it had
relied on the fire safety engineer.
It was the architects who had specified the use
of a material ‘indicative to Alucobond’, which
was a reference to a leading brand of ACMs. The
architects attempted to argue that the builders
should have interpreted the specification so as
to comply with the performance requirements
of the BCA. The Judge disagreed: he held that
the specification “at least permitted, and on one
view expressly prescribed, an ACP [ACM] with a
100% polytheylene core”.6
As a result, the
architect breached their consultancy agreement
by specifying a material that did not comply
with the BCA.
At [448], Woodward J then went on to comment
that although the architect may have been less
expert in the application of the BCA than the fire
engineers or the building surveyors, “it was
nevertheless sufficiently expert to be alert to the
need to ensure that the materials it specified did
not unduly contribute to flame spread.” Further,
the architect was “also in breach by effectively
abdicating its responsibilities as head design
consultant.”7
The firm inadequately assessed a
sample of the proposed material used. At [455],
the Judge held that, “its approval of a sample of
product without assessing it against this
apparently important aspect of its design, was a
failure to coordinate its design intent into the
final design.”
Conclusion: lessons to
be learnt
The liability of the architect will depend on the
nature of their retainer, their resulting
responsibility and the instructions given to
them. Whether or not a design professional is in
breach of their contractual or other duty for
failing to interpret building regulations properly
can be difficult to establish. In J Sainsbury Plc v
Broadway Malyan8
, the architects brought a
claim against consulting engineers in an action
arising out of a catastrophic fire at a retail store.
A girder in a fire compartment wall failed during
the fire. The architects settled their dispute with
the employer but failed in their claim for a
contribution against the engineers. HHJ
Humphrey LLoyd QC held that the engineers had
not come under a duty, in that particular
instance, to comment on fire protection issues.
The J Sainsbury v Broadway Malyan case
ultimately turned on the distinction between a
request for approval and a request for
comment, to which they did not reply. Design
liability for fire safety can, therefore, be case

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specific. What the Lacrosse case demonstrates is
that architects must be very careful when
making assumptions about the responsibility of
other design professionals in the consultancy
team, so as to avoid potential liability for fire
safety.
1 Metropolitan Fire Brigade, Post Incident Analysis
Report, November 2014. Available at:
http://www.mfb.vic.gov.au/Media/docs/Post_Incident_
Analysis_for_Lacrosse_Docklands_-_25_11_2014 -
FINAL-dd61c4b2-61f6-42ed-9411-803cc23e6acc-0.PDF
(accessed 26th March 2019).
2 Owners Corporation No.1 of PS613436T v LU Simon
Builders Pty Ltd (Building and Property) [2019] VCAT
286, accessible at
https://www.vcat.vic.gov.au/resources/owners-
corporation-no1-of-ps613436t-owners-corporation-no-
2-of-ps613436t-owners
3 Association of Consulting Architects Australia press
release, ‘Lacrosse Fire VCAT Decision’, 1 March 2019 (
https://aca.org.au/article/lacrosse-fire-vcat-decision ),
accessed 26th March 2019.
4 Sawtell, D. and Maxwell, D. (2019). The Lacrosse
Apartment Fire: Liability for Using Grenfell Style
Cladding. Available at:
https://www.law.ox.ac.uk/housing-after-
grenfell/blog/2019/03/lacrosse-apartment-fire-liability-
using-grenfell-style-cladding (Accessed 30th March
2019).
5 PIA Report, p.17.
6 Owners Corporation v LU Simon (2019), [446].
7 Ibid, [452].
8 (1998) 61 Con. L.R. 31.
David Sawtell / 10th Apr 2019
David Sawtell is a barrister at Lamb Chambers.
Selected notable cases:
Gosvenor London Ltd v Aygun Aluminium UK
Ltd [2018] EWCA Civ 2695 – led by Dr Tim
Sampson for the Respondent in the Court of
Appeal on the issue of adjudication
enforcement, stays and allegations of fraud
Mulalley and Company Ltd v Regent Building
Services Ltd [2017] EWHC 2962 (Ch) – setting
aside a winding up petition in the context of
an ongoing construction dispute and
assignment of choses in action
Mulalley and Company Ltd v Regent Building
Services Ltd and another [2017] EWHC 2962
(Ch), [2017] All ER (D) 200 (Nov) – injunction
restraining both a company and an individual
from presenting a winding up petition based
on disputed construction debts.
davidsawtell@lambchambers.co.uk
clerks@lambchambers.co.uk

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FAVOURABLE ‘TRUE VALUE’
ADJUDICATIONS WILL NOT HELP
AN EMPLOYER AVOID
ENFORCEMENT OF A
CONTRACTOR’S ‘SMASH AND
GRAB’ ADJUDICATION AWARD
M Davenport Builders Limited v Mr Colin
Greer & Anr [2019] EWHC 318 (TCC)
Mr Justice Stuart-Smith has handed down a not
unsurprising, but nonetheless important,
decision in M Davenport Builders Ltd v Greer &
Anr confirming that an employer must first
discharge its immediate payment obligation to
pay a ‘smash and grab’ adjudication award
before it is entitled to commence or rely upon a
decision given in a subsequent ‘true value’
adjudication.
The decision in Davenport follows on from the
Court of Appeal’s decision in S&T (UK) Ltd v
Grove Developments Ltd [2018] EWCA Civ 2448,
a claim concerning an interim application for
payment, where in obiter guidance the court
reached the same conclusion.
As brief background, in Davenport, the contract
between the Claimant contractor (“the
Contractor”) and Defendant employer (“the
Employer”) was for construction operations at a
building in Stockport. The Contractor applied for
final payment and the Employer failed to serve a
Payment Notice or a Pay Less Notice under the
Scheme for Construction Contracts, rendering it
liable to pay the full sum demanded in the
application.
The Contractor obtained a valid ‘smash and
grab’ adjudication award against the Employer
in the sum of £106,160.84 plus interest (being
the sum demanded on its final account plus
interest).
Six days after the award, the Employer
commenced an adjudication seeking a decision
on the true value of the final account. The
second adjudicator concluded that no further
sum was payable by the Employer.
In the absence of payment, the Contractor
pursued enforcement of the first adjudication
award in the TCC.
The key question for Stuart-Smith J. was
whether it was permissible for an employer,
prior to discharging its obligation to pay a
‘smash and grab’ adjudication award, to (a)
commence a true value adjudication; and/or (b)
rely upon the true value adjudication decision
by way of defence, set-off or counterclaim in the
TCC enforcement proceedings. He concluded in
both cases it was not:
otherwise, a defendant [employer] would be
able to ‘string’ the claimant along while it
obtained a true value adjudication decision [21];
the requirement to ‘pay first’ was consistent
with the policy underlying the adjudication
regime which was concerned with ensuring cash

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flow through construction projects rather than
the final determination of what sums were
actually due to the contractor [27];
there was no material difference in policy
whether the employer’s immediate obligation to
pay arose out of an interim or final application
[33].
Practically, this means that employers will be
required to ‘pay first’ any immediate obligation
to pay an adjudicator’s award, before seeking
the return of that payment when it has obtained
a favourable true value decision [21]. That latter
decision could not be relied upon to avoid
enforcement in the TCC.
Hannah Laithwaite / 10th Apr 2019
Hannah Laithwaite is a barrister at Lamb
Chambers.
hannahlaithwaite@lambchambers.co.uk
CALCULATING DAMAGES FOR
DELAY WHERE THE WORKS ARE
NEVER COMPLETED
Triple Point Technology Inc v PPT
Public Company Ltd [2019] EWCA
Civ 230
The Court of Appeal has now handed down
judgment in Triple Point Technology Inc. v PPT
Public Company Ltd.[2019] EWCA Civ 230 – on
appeal from Mrs Justice Jefford sitting in the
TCC – a case where the court had to consider
the correct approach to the calculation of
damages for delay should be applied where
the contract works (in this case the
development and installation of new
Commodities Trading, Risk Management and
Vessel Chartering System software) were
never completed. And, despite the
contractor’s failure to complete the works,
whether the contractor was contractually
entitled to payment in respect of issued works
orders that conflicted with the milestone
payment dates in the CTRM contract. Finally,
the court was also required to consider the
extent to which the contractual cap on
damages would apply.

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It is the first of those three issues that I
consider in this article; namely, the question
as to whether liquidated damages for delay
will apply where the contractual works had
never been completed and in fact would
never be completed by the original
contractor. Article 5 of the CTRM contract
provided for the payment of liquidated
damages of 0.1% “…of undelivered work per
day of delay from the due date for delivery up
to the date PTT accepts such work…”, an
entirely unexceptional provision save possibly
for use of the word ‘penalty’ to describe these
damages.
TPT completed phase 1 of the works late and
then failed to complete phase 2 of the works
at all, instead it ceased work alleging none
payment under three outstanding order forms
(despite these order forms conflicting with
the contractual milestones). TPT claimed for
payment of the sums allegedly outstanding
under its order forms, whilst PPT sought to
counterclaim liquidated damages for the
entire period of delay - in additional to
general damages arising from TPT’s failure to
supply functioning CTRM software.
The question for the court at first instance
and then on appeal was whether there was
any scope for the application of liquidated
damages (under Article 5) where the works
were never completed and a second
contractor has to step in and complete the
works. Or whether in those circumstances the
claimant should fall back on a claim for
general damages for breach of contract
following wrongful repudiation of the contract
i.e. the right to liquidated damages is lost
where the works are never completed.
The CA identified that this question had arisen
in a number of previous cases but rather than
a consistent line of authorities the courts
appeared to have adopted three different
approaches depending on the exact wording
of the contractual clause [106]:
The liquidated damages clause will not apply
and only general damages will be recoverable
– British Glanztoff Manufacturing Co. Ltd. v
General Accident, Fire and Life Assurance Co.
Ltd 1912 SC 591 (Court of Session) and 1913
SC (HL) 1;
The liquidated damage clause only applies up
to the date of termination of the first contract
and then general damages will apply
thereafter – Greencore Port Ltd. v Technical &
General Guarantee Company Ltd. [2006]
EWHC 3119 (TCC) ; and
The liquidated damages clause continues to
apply until the second contractor achieves
completion – Hall v Van Der Haiden (No 2)
[2010] EWHC 586 (TCC).

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In trying to reach a conclusion as to the
correct approach the Sir Rupert Jackson noted
that “… much will turn on the precise wording
of the liquidated damages clause in question.”
[107] and whilst the approach identified at (ii)
has been treated as the “orthodox analysis”
by legal textbooks that approach is not free
from difficulties of its own.
The Greencore approach to liquidated
damages clauses, as identified at (ii), was
explained by Edwards-Stuart J. in Shaw v MFP
Foundations and Pilings Ltd [2010] EWHC
1839 (TCC) in the following terms:
“So far as liquidated damages are concerned,
in respect of any period of culpable delay up
to the date when the contract is terminated
the employer is entitled to recover liquidated
damages at the contractual rate (or nothing, if
that is what the contract provides). However,
after the date of termination the parties are
no longer required to perform their primary
obligations under the contract and so the
contractor’s obligation to complete by the
completion date no longer remains and the
provision for liquidated damages therefore
becomes irrelevant. In its place arises an
obligation to pay damages for the employer’s
losses resulting from the breach of contract,
including damages for any loss resulting from
any further delay caused by the need to have
the works completed by a different
contractor.” [41]
However, where the wording of the
contractual clause is so closely aligned to that
considered by the House of Lords in Glanzstoff
then the ratio that decision will continue to
apply – meaning that the right to liquidated
damages for delay will be subsumed into a
claim for general damages.
The clauses considered by the Court in
Glanzstoff provided for both liquidated
damages “24. If the contractor fail to
complete the works by the date named in
cause 23, or within any extended time
allowed by the architect….” and then at clause
26 for general damages that would apply
where the employer incurred additional
where the contractor ceased working. The
contractor in fact became bankrupt before
the works were complete and another
contractor had to be brought in to complete
the works – delaying the completion by some
6 weeks. The question was then whether the
employer had a right to liquidated damages,
against the first contractor, for that period of
delay pursuant to clause 24 or whether that
claim had been subsumed into its right to
general damages under clause 26.
Lord Haldane, giving the judgment of the HL,
concluded that clause 24 did not apply for the
following reasons:

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“…first of all, that is altogether inapt to the
provisions of made by clause 26, which
contain a complete code of themselves; and
secondly, because upon its construction I read
it is meaning that if the contractors have
actually completed the works, but have been
late in completing the works, then, and in that
case only, the clause applies. Under the
circumstances in which this appeal comes
before us the contractors have not completed
the works; on the contrary, they have been
ousted from the works by the employers
under their powers given them by clause 26. I
am therefore of the same opinion as the
learned Judges in the Court of Session, who
were unanimous in holding that clause 24 has
no application to the present case…”.
The third possible approach, identified in
cases such as Hall v Van Der Haiden (No 2),
did not meet with much judicial sympathy –
albeit the court did not actually hold that
those cases were wrongly decided.
The position would therefore appear to be
that the exact wording of the contractual
provision dealing with liquidated / general
damages causes will be crucial – and in the
present case the CA found that the liquidated
damages clause in the contract was of the
Glanzstoff variety as the wording of Article 5.3
of that contract provided that liquidated
damages applied “up to the date PTT accepts
such works”. As the phase 2 works were never
completed – that is to say the works were
never accepted as completed by PTT – meant
Article 5.3 did not apply. The right to damages
for the failure to complete the works would
not, of course, be lost. Such damages would
simply become recoverable as general
damages arising from the contractor’s failure
to complete the works rather than as
liquidated damages for delay.
The key lesson to be drawn from the decision
in Triple Point is that great care should be
taken when drafting liquidated damages
clauses to reflect whether liquidated damages
for delay will apply until contractual
termination - even where the works are never
in fact completed (the Greencore approach),
or, whether the contractual right to liquidated
damages will be lost should the works never
be completed and only general damages for
the increased costs resulting from the delayed
completion will be recoverable (the Glanzstoff
approach). Dr Tim Sampson / 10th Apr 2019
Dr Tim Sampson is a barrister at Lamb
Chambers.
timsampson@lambchambers.co.uk

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DEALING WITH FRAUD IN THE
ADJUDICATION
BM Services Inc Limited v Greyline
Builders Limited [2018] EWHC 3884
(TCC)
This first instance decision of Mr Alexander
Nissen QC (sitting as a Deputy Judge of the
High Court) on an application for summary
judgment to enforce an adjudicator’s award is
the latest case to consider the circumstances
and the relevant legal tests when fraud is
raised as a defence. It further considers
allegations that the adjudicator failed to
consider a defence and failed to give reasons
for his decision, breaching the rules of natural
justice.
THE FACTS
The claimant was employed as a labour-only
subcontractor by the defendant which was
employed as a sub-contractor to fit out
kitchens on a redevelopment for a local
authority. The claimant had a single director
who was also a shareholder. This Mr Chirica
was also employed by the main contractor.
The claimant commenced proceedings in
respect of the unpaid final balance. The
defendant alleged the claimant’s director had
colluded with the clerk of the work to
artificially inflate sums due to the claimant.
The defendant had raised the alleged frauds
in its rejoinder in the adjudication. Firstly, it
relied on the alleged fraud to challenge the
adjudicator’s jurisdiction. Secondly, it argued
that the dishonest behaviour had overvalued
the claimant’s work. The adjudicator decided
that the alleged fraud did not deprive him of
jurisdiction and went on to decide the matter
in favour of the claimant in the sum of
£138,275.65 plus interest.
THE COURT’S DECISION
The defendant raised two challenges to the
adjudicator’s decision which the court was
required to resolve: 1) had the adjudicator
considered the defence of fraud, and 2) had
the adjudicator given sufficient reasons for
any decision against the defendant’s
allegations of fraud.
1) The judge set out the matters the
adjudicator had considered and held that the
issue of fraud was raised simply as an
evidential defence and not as a stand alone
defence in its own right. In essence, it was to
say that certain documents had been tainted
by fraud and so could not be relied upon to
value the claimant’s work. All of the relevant
evidence was available to the adjudicator but
he did not find any fraud had been proved.
The concluded that by considering the
evidence to which the fraud allegations

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related, and finding there to be no evidence
of any collusion, the adjudicator had
considered the allegation of fraud and had
found against the defendant.
2) Given the adjudicator decided that there
was no collusion and that the dual-
employment of the claimant’s director was
known to all parties, the court held he had
given reasons for his decisions. Where
discrepancies in value were found to exist, the
adjudicator dealt with them expressly.
Accordingly, there was no breach of the rules
of natural justice. The judge also considered
that the defendant’s position was flawed by
its failure to demonstrate what consequence
the alleged fraud had. There was no evidence
either before the adjudicator or the court to
demonstrate the value of the claimant’s case
had it not been tainted by fraud.
SUMMARY
This case highlights the importance for parties
to adjudication proceedings to ensure their
evidence proves the point they are making.
The defendant had produced such little
evidence of the alleged fraud that the
claimant did not even provide a detailed
response to the allegations during the
adjudication. The judge was demonstrably not
impressed by the defendant’s bland assertion
that further evidence of fraud had come to
light between the adjudication and the court
hearing without actually setting it out in
addition to noting that it was not apparent
that even if the allegations had been proved
the award would have been reduced.
Matthew Gillett / 10th Apr 2019
Matthew Gillett is a barrister at Lamb
Chambers.
matthewgillett@lambchambers.co.uk

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RESERVING YOUR POSITION ON
JURISDICTION DURING
ADJUDICATION
Ove Arup & Partners International
Ltd v Coleman Bennett International
Consultancy plc [2019] EWHC 413
(TCC)
In October 2018, an adjudicator decided that
Ove Arup (“OA”) was entitled to a payment of
£389,268.43 plus interest from Coleman
Bennett (“CB”) in relation to engineering
services OA had provided for a ‘Northern
Powerhouse’ project for proposed magnetic
levitation railways. OA sought summary
judgment so that the adjudication could be
enforced.
CB disputed the claim on the basis that the
contract was not a construction contract at all
for the purposes of the Housing Grants,
Construction and Regeneration Act 1996; it
claimed that the statutory adjudication
scheme was not engaged because OA had
essentially merely carried out a study. CB also
argued that the adjudication pertained to
more than one contract or dispute, which
again was outside the scheme’s jurisdiction.
Thirdly, CB claimed that the adjudicator had
wrongly purported to decide matters which
neither he (nor the TCC on this application)
could properly determine, namely whether or
not this was indeed a construction contract
and whether it had effectively been varied.
The Court was assisted on the question of
waiver by the Court of Appeal’s decision in
Bresco Electrical Services Limited (in
liquidation) v Michael J Lonsdale (Electrical)
Limited [2019] EWCA Civ 27, which had
recently been handed down. Coulson J had
concluded that the purpose of adjudication
would be defeated if a party could simply
reserve its position on jurisdiction, rather than
simply challenging it ‘appropriately and
clearly’. Here, the points taken by CB had
been ventilated in its initial response in
general but not specific terms, as no details
had been given as to the basis for its
objections on a number of issues. It could not
have been clear to the adjudicator what the
basis of the challenge to his jurisdiction might
be, as the adjudicator had himself pointed
out. Those objections which were more
specifically outlined had been addressed by
the adjudicator and resolved in AO’s favour.
Mrs Justice O’Farrell also concluded that in
reality, CB had lost its right to challenge
jurisdiction simply because of the wording of
its pleaded response to AO’s claim which
amounted to an admission.

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CB’s argument that the consultation on the
feasibility of a transport scheme could not be
a construction contract for the purposes of
the Act was also at odds with a plain reading
of ss.104-105 of the Act, which affords a
broad definition to such contracts. Summary
judgment was therefore granted to AO in the
amount sought.
Graeme Kirk / 10th Apr 2019
Graeme Kirk is a barrister at Lamb Chambers.
graemekirk@lambchambers.co.uk
Lamb Chambers
Lamb Building, Temple
London, EC4Y 7AS
DX: 418 LDE
Telephone: +44(0)20 7797 8300
TCC JUDGEMENTS
March
 Anchor 2020 Ltd v Midas
Construction Ltd [2019] EWHC 435
(TCC) (01 March 2019)
 Billingford Holdings Ltd & BFL
Trade Ltd v SMC Building Solutions
Ltd & Anor [2019] EWHC 711 (TCC)
(08 March 2019)
 Grandlane Developments Ltd v
Skymist Holdings Ltd [2019] EWHC
747 (TCC) (29 March 2019)
 Hamad M Aldrees & Partners v
Rotex Europe Ltd [2019] EWHC
526 (TCC) (14 March 2019)
 Hamad M. Aldrees & Partners v
Rotex Europe Ltd [2019] EWHC
574 (TCC) (13 March 2019)
 Hitachi Zosen Inova AG v John Sisk
& Son Ltd [2019] EWHC 495 (TCC)
(08 March 2019)
 Triumph Controls - UK Ltd & Anor v
Primus International Holding
Company & Ors [2019] EWHC 565
(TCC) (11 March 2019)
April
 Essex County Council v UBB Waste
(Essex) Ltd [2019] EWHC 819 (TCC)
(02 April 2019)

MAY 2019 NEWSLETTER
15 | P a g e
 PBS Energo AS v Bester Generacion
UK Limited [2019] EWHC 996 (TCC)
(17 April 2019)
 Russell & Anor v Stone (t/a PSP
Consultants) & Anor [2019] EWHC
831 (TCC) (05 April 2019)
 Swansea Stadium Management
Company Ltd v City & County of
Swansea & Anor [2019] EWHC 989
(TCC) (17 April 2019)
DRBF CONFERENCES 2019
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/
ADJUDICATION SOCIETY
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)
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

MAY 2019 NEWSLETTER
16 | 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

MAY 2019 NEWSLETTER
17 | 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.

ADJUDICATION
SURVEY 2018
Construction & Technology Attorneys
V I E W

The MDA Adjudication Survey aims to provide some
(albeit limited) statistical information regarding the state
of adjudication in South Africa.
The survey consists of information collected by MDA in
respect of adjudications where MDA were retained to
represent one of the disputing parties, or where one of
our fee earners acted as an adjudicator.
The information collected relates to adjudications where
a decision was issued between 1 January 2018 and
31 December 2018.
MDA assisted with 35 adjudications during this period.
The survey does not attempt to provide a representation
of statistics of all adjudications in South Africa
but simply provides analysis taken from these 35
adjudications and provides some interesting insight.
INTRODUCTION
NUMBER OF ADJUDICATIONS
HANDLED BY MDA
2017
1 J A N U A R Y – 3 1 D E C E M B E R
2018
35
45
N E X T PAG E

OVERVIEW
1. Number Of Adjudications – 2015 To 2018
2. Nature Of Dispute
3. Parties To The Dispute
4. Conditions Of Contract
5. Monetary Value Of The Dispute
6. Qualifications Of The Adjudicator
7. What Was Adjudicator’s Hourly Rate?
8. Appointment Of The Adjudicators.
How Was The Adjudicator Appointed.
9. Was There A Hearing?
10. Was A Settlement Reached During The Adjudication Process?
11. If Dispute An Employer/ Contractor Dispute
Then Decision In Favour Of...
12. If Dispute A Contractor/ Subcontractor Dispute
Then Decision In Favour Of...
13. Monetary Value Of Decision
14. Did The Adjudicator Issue His/Her Decision In Time?
15. Has A Notice Of Dissatisfaction Been Issued?
N E X T PAG E

1. NUMBER OF ADJUDICATIONS – 2015 to 2018
M D A A D J U D I C A T I O N S U R V E Y 2 0 1 8
1 J A N U A R Y – 3 1 D E C E M B E R
20172015 20182016
35
45
27
49
OV E R V I E W N E X T PAG E

2. NATURE OF DISPUTE
The most common disputes referred to adjudication during the 2018 year were those in respect of claims
for extension of time and time related costs. This is a continuation of the 2017 trend.
■ Claim for extension of time and time related costs 19
■ Claim for payment of outstanding monies/ incorrect certification 8
■ Enforcement of contract rights 4
■ Claim for additional payment 4
54%
22%
12%
12%
N E X T PAG EOV E R V I E W

3. PARTIES TO THE DISPUTE
Similar to previous years, the majority of the disputes handled by MDA involved disputes between
contractors and employers, with only 3 out of 35 disputes between subcontractor and contractor.
32
3
Employer / Contractor Contractor / Subcontractor

FIDIC
JBCC
2000
series
nec
4. CONDITIONS OF CONTRACT
11%
22%
57%
5,5%
2,5%
BESPOKE
GCC
As with previous surveys the NEC makes up the largest portion of the contracts creating disputes.
Second in line is the GCC 2010/ 2015 suite.

5. MONETARY VALUE OF THE DISPUTE
Continuing the common trend, large majority of the disputes referred to adjudication dealt with
monetary values of R5 million and less.
R 1 million 1 m – 5 m 5 m – 10 m 10 m – 20 m 20 m – 50 m R 50m N/A
8%
8%
13%33% 30%
4%
0%

6. QUALIFICATIONS OF THE ADJUDICATOR
Once more engineers and attorneys make up the majority of the adjudicators. Most DAB’s appeared to
contain at least three members with an even spread of qualifications. MDA has also seen an increase in
dual qualified adjudicators over the years.
7%
45%
3%
45%
Attorney/ advocateDual qualified
Quantity surveyor Engineers

7. WHAT WAS ADJUDICATOR’S HOURLY RATE?
A wide range of adjudicators rates were recorded over the 2018 year. Interestingly there does not appear
to be any industry related standard or guidelines in the rates that adjudicators charge but this appears
rather to be linked to the adjudicators qualifications.
R 4 000 R 3 500 R 3 100 R 1 800 R 1 700 R 1 575 R 1 500 R 1 400 R 1 250 Unknown
Hourly rate
32,5%
7,5%
7,5%
5% 5%
5%
15% 17,5%
2,5%
2,5%

8. APPOINTMENT OF THE ADJUDICATORS.
How was the adjudicator appointed.
This year we included a new point in our questionnaire to ascertain how adjudicators are being
appointed. The stats showed most are being appointed via agreement between parties as this
provides them with an element of control.
Agreed
between
parties
Association of
Arbitrators
81% 19%

9. WAS THERE A HEARING?
In stark contrast to 2017. Only 3 of the 35 adjudications went to hearing.
YES NO8% 92%

10. WAS A SETTLEMENT REACHED DURING THE ADJUDICATION PROCESS?
In sharp contrast to 2017, 25% of the matters reached a settlement during the adjudication
process.
NOYES 75%25%

11. IF DISPUTE AN EMPLOYER/ CONTRACTOR DISPUTE
THEN DECISION IN FAVOUR OF
14
Employer Contractor
9
Similar to previous years, contractors are still proving more successful than employers in disputes, with
55% of decisions in favour of contractors. A small number of disputes find a decision reasonably spread
between employer and contractor on grounds of principle.

12. IF DISPUTE A CONTRACTOR/ SUBCONTRACTOR DISPUTE
THEN DECISION IN FAVOUR OF
1
Contractor Subcontractor
2

Millions
13. MONETARY VALUE OF DECISION
The majority of the adjudicators awarded decisions less than R1 million. This correlates with the values of
the disputes referred to adjudication.
0 R 1 R 1 – R 5 R 5 – R 10 Not applicable
4% 17%
12,5%54%
12,5%

14. DID THE ADJUDICATOR ISSUE HIS/HER DECISION IN TIME?
Only 81% of decisions were issued on time. This is a concerning drop in performance by
adjudicators.
YES NO81% 19%

15. HAS A NOTICE OF DISSATISFACTION BEEN ISSUED?
42% of the total dispute outcomes accepted the adjudicators decision as final. Although a small
number of Notices of Dissatisfaction were issued, this does not necessarily mean the dispute will
go to arbitration. Only a small number of adjudications are taken to arbitration.
YES
Time period is
yet to expire
NO
16%
42%
42%
H O M EOV E R V I E W

22 AUGUST 2019 - CIARB 12 BLOOMSBURY SQUARE, LONDON WC1A 2LP
2019 LONDON ADJUDICATION ARBITRATION CONFERENCE
HANSCOMB INTERCONTINENTAL, 5 CHANCERY LANE , LONDON
www.hanscombintercontinental.com
VENUE
CIARB 12 Bloomsbury Square, London WC1A 2LP
2019 LONDON ADJUDICATION
ARBITRATION CONFERENCE
22 AUGUST 2019

CAPACITY: 140 ATTENDEES, 20 SPEAKERS
ADJUDICATION / DISPUTE BOARD TRACK WILL TAKE PLACE IN THE OLD LIBRARY
ROOM (LGF) 80 PERSONS
ARBITRATION TRACK WILL TAKE PLACE IN THE COUNCIL CHAMBER (GF) 80 PERSONS
COMPARARTIVE PRICE TABLE
Venue sponsor x 1 1600.00
Lunch sponsor x 1 1800.00
Refreshment sponsor x 1 1600.00
Drinks reception sponsor x 1 2400.00
Pen sponsor x 1 170 pens to be supplied by sponsor
Writing pad sponsor x 1 170 pads to be supplied by sponsor
Name badge sponsor x 1 240.00
USB sponsor 170 USB to be supplied by sponsor, with pa-
pers uploaded
Speakers dinner sponsor x 1 1000.00
Platinum sponsor x 1 2000.00
Gold sponsor x 1 1400.00
Silver sponsor x 1 950.00
Bronze sponsor x 3 500.00
Alternatively, one organisation could be the
sole sponsor.
10,000.00
Prices are quoted in £GBP and are subject to VAT at the prevailing rate.
Sponsorship only confirmed by receipt of payment.
We also invite proposals to suit your required budget and level of participation.

VENUE x 1 £1600.00
Acknowledgment in all conference promotions, including flyers, invitations, emails and media
releases.
Brochure distribution to conference delegates.
Limited corporate signage allowed to be displayed
Opportunity to address delegates during conference
Will be thanked during conference and in presentation slides
LUNCH x 1 £1800.00
releases.
REFRESHMENT x 1 £1600.00
releases.
DRINKS RECEPTION x 1 £2400.00
releases.
Opportunity to address delegates at start of drinks reception

SPEAKERS DINNER x 1 £1000.00
releases.
Opportunity to address speakers at dinner
PLATINUM x 1 £2000.00
releases.
Tabletop display and brochure distribution to conference delegates.
Unlimited corporate signage allowed to be displayed
Opportunity to address delegates at opening of conference
May play videos at designated area (sponsor to provide all necessary equipment)
GOLD x 1 £1400.00
releases.
Opportunity for tabletop display and brochure distribution to conference delegates
Unlimited corporate signage allowed to be displayed
May play videos at designated area (sponsor to provide all necessary equipment)
SILVER x 1 £950.00
Acknowledgment in all conference promotions, including flyers, invitations, emails, and media
releases.
Opportunity for brochure distribution to conference delegates.
Four pop up banners may be displayed at venue
BRONZE x 3 £500.00
Acknowledgment in all conference promotions, including brochures, invitations, emails, and media
releases.
Opportunity for brochure distribution to conference delegates.
One pop banner 1mx2m may be displayed at venue.
To discuss your exact requirements or to book packages please contact:
Sean Gibbs, Hanscomb Intercontinental, Eagle Tower, Cheltenham GL50 1TA
sean.gibbs@hanscombintercontinental.co.uk +447722643816

UK Adjudicators May 2019 Newsletter

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UK Adjudicators May 2019 Newsletter