This newsletter from UK Adjudicators provides updates on security of payment laws and adjudication. It discusses training being offered in 2019 to support applicants to their adjudicator panel. It also summarizes differences between how Australian and English courts treat severing valid parts of an adjudicator's decision from parts affected by jurisdictional error. Additionally, it provides updates on legislation regarding construction retention schemes in the UK and amendments to security of payment laws in New South Wales.

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EDITORS’ COMMENTS
It is a year now since we started to invite
people to apply to join our panel. Whilst we
have rejected unsuitable applicants, we do
want to encourage those who have the
intellectual and technical skills to join our
panel. With this in mind we will be offering
training in 2019 to support potential
applicants.
We are planning a series of events across the
country in 2019 to publicise the services of
our nominating body if you would like to take
part as a speaker or can host us in your offices
please do let me know.
The Adjudication Society conference takes
place on the 8th November in Bristol. As many
of our panellists will be attending, we have
arranged an informal dinner on the 7th
November at Loch Fyne at 7.00pm. We hope
to be able to meet with you and discuss the
future development of UK Adjudicators.
https://www.eventbrite.co.uk/e/uk-
adjudicators-bristol-dinner-tickets-
51031662075?ref=esli&
Sean Gibbs LLB (Hons) MICE FCIOB FRICS
FCIARB, is a director with Hanscomb
lntercontinental and is available to serve as an
arbitrator, adjudicator, mediator, quantum
expert and dispute board member.
sean.gibbs@hanscombintercontinental.co.uk
SINGAPORE APPROVES CHANGES
TO SECURITY OF PAYMENT RULES
The New Zealand High Court followed the
United Kingdom’s Supreme Court in
Cavendish Square Holding BC v Makdessi
[2015] UKSC 67 by holding that a clause is a
penalty where the detriment to the contract
breaker was “out of all proportion to any
legitimate interest of the innocent party in the
enforcement of the primary obligation”.
https://sso.agc.gov.sg/Bills-Supp/38-2018/
Thomas Johnson, is a director in the global
construction claims consultancy Hanscomb
Intercontinental.
JURISDICTIONAL ERROR AND THE
SECURITY OF PAYMENT SCHEME IN
AUSTRALIA CONTRASTED WITH
THE POSITION IN ENGLAND
Decisions of adjudicators in security of
payment cases are challenged frequently in
Australia.
The Australian Government report, Review of
Security of Payment Laws: Building Trust and
Harmony reported that the demarcation
between jurisdictional and non-jurisdictional
errors ‘has been said to be not always a bright
line’.

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Recommendation 57 proposes that courts
should be able to sever parts of an
adjudication decision affected by jurisdictional
error so as to allow the balance of the
decision to remain enforceable.
The legislation should expressly provide that,
where an adjudicator has committed
jurisdictional error of law in a part of the
adjudication decision which does not affect
the whole of the decision, a court with the
power to sever that affected part of the
decision may do so and allow the remainder
of the decision to be enforceable.
Section 100(4) of the Queensland Act provides
a suitable model.
The section from Queensland states that
If, in any proceedings before the court in
relation to any matter arising under a
construction contract,
the court finds that only a part of an
adjudicator’s decision under Part 3 is affected
by jurisdictional
error, the court may —
(a) Identify the part affected by the error; and
(b) Allow the part of the decision not affected
by the error to remain binding on the parties
to the proceedings.
During the consultation process on the initial
report, numerous stakeholders were invited
to express their views on whether there
should be legislation enabling the court to
sever that part of the adjudicator’s decision
that was affected by jurisdictional error and
confirm the remainder of the decision as
binding.
An overwhelming majority of stakeholders
expressed support for the enactment of
legislation which would give courts the power
to sever that part of an adjudicator’s decision
that is declared void, but preserve the validity
of the remainder, clearly supporting the
Queensland model.
In contrast, the English and Welsh Technology
& Construction Court has sent mixed
messages in dealing with this issue. In the
case of Cantillon Ltd v Urvasco Ltd [2008]
B.L.R. 250, Akenhead J laid down a number of
principles:
(a) The first step must be to ascertain what
dispute or disputes has or have been referred
to adjudication. One needs to see whether in
fact or in effect there is in substance only one
dispute or two and what any such dispute
comprises.
(b) It is open to a party to an adjudication
agreement as here to seek to refer more than
one dispute or difference to an adjudicator. If
there is no objection to that by the other party

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or if the contract permits it, the adjudicator
will have to resolve all referred disputes and
differences. If there is objection, the
adjudicator can only proceed with resolving
more than one dispute or difference if the
contract permits him to do so.
(c) If the decision properly addresses more
than one dispute or difference, a successful
jurisdictional challenge on that part of the
decision which deals with one such dispute or
difference will not undermine the validity and
enforceability of that part of the decision
which deals with the other(s).
(d) The same in logic must apply to the case
where there is non-compliance with the rules
of natural justice which only affects the
disposal of one dispute or difference.
(e) There is a proviso to (c) and (d) above
which is that, if the decision as drafted is
simply not severable in practice, for instance
on the wording, or if the breach of the rules of
natural justice is so severe or all-pervading
that the remainder of the decision is tainted,
the decision will not be enforced.
(f) In all cases where there is a decision on
one dispute or difference, and the
adjudicator acts, materially, in excess of
jurisdiction or in breach of the rules of
natural justice, the decision will not be
enforced by the court.
In the later case of Estor Ltd v Multifit (UK) Ltd
[2009] EWHC 2108 (TCC), Akenhead J added
obiter comment to the issue of whether the
adjudicator had jurisdiction to decide that
Estor pay some of his fees for an earlier
abortive adjudication. Akenhead J found there
was no good jurisdictional objection in this
regard, but if he were wrong on that he stated
that he would still have enforced the
remainder of the adjudicator’s decision, as
follows:
Even if I was wrong, the adjudicator’s decision
would still be enforceable save in respect of
the identifiable part of his decision upon which
on that premise he did not have jurisdiction,
namely £2,325; he would simply have included
a clearly identifiable element on which he did
not have jurisdiction. It is no different from a
decision in which two sums are awarded to a
claimant and on one of them the adjudicator
had no jurisdiction. The court will usually
enforce the part of the decision in respect of
which he had jurisdiction. I do not in this
regard consider that my observations in
Cantillon v Urvasco [2008] EWHC 282 (TCC)
(paragraph 63) were wrong or need
distinguishing: here, if the adjudicator had no
jurisdiction over the fees for the abortive
adjudication, it could be said that the dispute
about that fee was a separate dispute, the
decision upon which was severable and
separable from the rest of the decision.

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In the case of WSP CEL Ltd v Dalkia Utilities
Services plc [2012] 2428 (TCC), Ramsey J
considered severability in a dispute which
concerned a final account dispute: a single
dispute encompassing various issues. As the
judge found the adjudicator in fact had
jurisdiction for the whole decision, his
comments were obiter, but he considered
that it would have been possible to sever the
adjudicator’s decision, stating:
…if I had found that certain individual items
for compensation events could not be referred
to the adjudicator then this is a case where I
consider that it would have been possible to
sever the decision…This was a case…where the
individual claims could have been isolated and
where the jurisdictional challenge referred
only to certain claims and not to all claims. As
a result, in those circumstances, in the same
way as Mr Justice Akenhead did in [Beck], I
consider that it would have been possible to
sever the decision in this case.
The English cases show some conflicting
approaches and it is certainly arguable that an
amendment to legislation along the lines of
the Australian recommendations discussed
above would be an improvement. Such
amendments would lead to certainty,
supporting the ‘pay now argue later’
philosophy.
https://docs.jobs.gov.au/system/files/doc/oth
er/review_of_security_of_payment_laws_-
_final_report_published.pdf
CONSTRUCTION (RETENTION
DEPOSIT SCHEMES) BILL 2017-19
The second reading debate of the
Construction (Retention Deposit Schemes) Bill
introduced by Mr Peter Aldous MP has been
postponed again, from 26 October, and is now
expected to take place on 23 November 2018.
Those following its progress will be starting to
see the pattern of postponement, possibly
pushing out the Bill from ever being
implemented, with Brexit issues taking
priority in Parliament during 2019 & 2020.
The Bill’s progression through Parliament can
be followed via the following link:
https://services.parliament.uk/bills/2017-
19/constructionretentiondepositschemes.html
NEW SOUTH WALES SECURITY OF
PAYMENT AMENDMENT BILL 2018
The second reading of the Building and
Construction Industry Security of Payment

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Amendment Bill 2018 took place on the 24
October 2018.
The object of this Bill is to amend the Building
and Construction Industry Security of
Payment Act 1999 (the Principal Act) as
follows:
(a)
to modify provisions relating to the
entitlement under the Principal Act to receive
progress payments and to serve claims in
respect of those payments,
(b)
to provide that a progress payment to be paid
to a subcontractor under a construction
contract is due and payable no later than 20
(instead of the current 30) business days after
the subcontractor makes a payment claim for
the payment,
(c)
to increase penalties for offences under the
Principal Act, including offences relating to the
supporting statements that are required to
accompany payment claims,
(d)
to make miscellaneous amendments relating
to the procedure for recovering progress
payments under the Principal Act, including
providing for a code of practice relating to
persons who are authorised to nominate
adjudicators,
(e)
to enable the Supreme Court to set aside (in
whole or in part) an adjudicator’s
determination if it finds that a jurisdictional
error has occurred,
(f)
to enable the regulations to require
information to be provided to subcontractors
when entering into construction contracts,
(g)
to include investigation and enforcement
powers under the Principal Act,
(h)
to provide for the period in which proceedings
for offences against the Principal Act or the
regulations may be commenced in the Local
Court.
Some of the amendments will be of interest
to those calling for changes in England
following the collapse of Carillion, such as the
progress payment to subcontractors having to
be made within 20 business days when
payment claims are made.

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UK ADJUDICATORS’ DINNER
The UK Adjudicators will be holding a dinner
at Loch Fyne restaurant in Bristol the evening
of the 7th
November 2018 7.00pm for 7.30pm.
Bookings can be made using the following
link:
https://www.eventbrite.co.uk/e/uk-
adjudicators-bristol-dinner-tickets-
51031662075?ref=esli&
ADJUDICATION SOCIETY ANNUAL
CONFERENCE 2018
The Adjudication Society's Seventeenth
Annual Conference will be held at the
Mercure Bristol Hotel on Thursday 8th
November 2018.
The theme will be 'Adjudication: A 2018
Refresher and Update' and the key note
speaker is Mrs Justice O'Farrell QC.
https://www.adjudication.org/events/annual-
conference-2018
DRBF CONFERENCES 2018
Geneva, Switzerland 14-16 November 2018
http://www.drb.org/events/calendar/

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SCL AFRICA INTERNATIONAL
CONFERENCE
On 20 & 21 November 2018 thought leaders
in the African and International Construction
Law field will meet in Johannesburg for the
3rd International Construction Law
Conference.
KEYNOTE SPEAKER Sir Vivian Ramsey QC
SPEAKERS
Sean Gibbs, Hanscomb Intercontinental Ltd,
London
Vincent Moran QC, Keating Chambers, London
Adv. Patrick Lane SC, 39 Essex Chambers, The
Maisels Group, Johannesburg
Adv. Kevin Trisk SC, The Maisels Group,
Johannesburg
Abdul Jinadu, Keating Chambers, London
Adv. Johan Beyers, Keating Chambers, The
Maisels Group, Cape Bar
Gerhard Rudolph, Allen & Overy,
Johannesburg
Dawson Jenner, HKA, Johannesburg
Don Ruhukwa, Chief State Counsel, Botswana
Christopher Ennis, Time | Quantum Expert
Forensics Ltd, London
Rob Morson, Pinsent Masons, Johannesburg
Patrizia Palmitessa-Savric, Ginder-Palmitessa,
Botswana
Rob Scott, Clyde & Co, Johannesburg
Uwe Putlitz, CEO JBCC, Johannesburg
Luca Sommariva, K&L Gates, London & Milan
Dawid Welgemoed, Keating Chambers, The
Maisels Group, Cape Bar
Tengo Rubadiri, Attorney, Botswana
Stoffel Ackermann, STBB, Cape Town
Jonathan Ripley-Evans, Herbert Smith
Freehills, Johannesburg
Stuart Davey, International Dispute Services,
London
Michelle Kerr, MDA Consulting, Johannesburg

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Tommy Wakefield-Smith, Synel Consulting,
Johannesburg
Chloe de Jager, Pinsent Masons,
Johannesburg
Rob Schultz, Alstom, Saudi-Arabia
Pieter van Rooyen, ABInBev Africa,
Johannesburg
Kailash Dabeesingh, Kailash Dabeesingh
Arbitration Chambers, Mauritius
Damian James, Delay & Quantum expert,
Johannesburg
Sameer Amod, Bigen Group, Pretoria
Zama Ngcobo, LNP Attorneys, Johannesburg
Retselisitsoe Motlojoa, Independent Expert,
Lesotho
https://sclafrica.org/wp-
content/uploads/2018/10/SCLA-Conference-
Registration-Form-2018-JB23-10-18.pdf
FIDIC CONFERENCES 2018
Contractor & Claims Workshops: 3 December
Main Conference: 4 & 5 December 2018
Modified Contracts & Dispute Resolution
Workshops: 6 December 2018
Novotel London West, London, UK
https://law.knect365.com/fidic-international-
contract-users/
Cardiff 28 November 2018
(1) Key recent professional liability cases; (2)
Trends (including post Grenfell liability issues
and the Carillion liquidation); and (3) Practical
guidance
5.30 for 6.00pm at Blake Morgan, One Central
Square, Cardiff CF10 1FS
Speakers are Sarah Hannaford QC and Tom
Owen (Keating Chambers)

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SCL INTERNATIONAL CONFERENCE
2020
The Society of Construction Law 9th
International Conference is being held from
the 4th to the 6th November, 2020 in
Auckland, New Zealand, further details can be
found at:
http://www.constructionlaw2020.com/scl20