UK Adjudicators October 2021 Newsletter

WWW.UKADJUDICATORS.CO.UK
OCTOBER 2021 NEWSLETTER
1 | P a g e
EDITORS COMMENTS
With the United Kingdom opening up there are
some great opportunities to attend
conferences and other functions. The Society
of Construction Law has a full programme of
lectures and UK Adjduciators will be hosting a
table again at the the SCL London lunch in
February 2022.
I am speaking about English adjudication to the
International Society of Construction Law
Conference in New Zealand and will be joined
by Johan Beyers talking about adjudication in
South Africa, John Cock talking about the past
forms of adjudication and planned future
forms of adjudication in Hong Kong and Joanna
Seetoh will be sharing her insights about SOPL
in Singapore.
Lord Justice Coulson will be speaking at the
Adjudication Society conference in November
2021 which is being held during the 25th
anniversary of the passing of the Construction
Act.
There have been numerous adjudication cases
heard in the TCC this year and whilst none have
changed the law radically they do serve as a
reminder of the law and the courts support for
adjudication. Irish cases on adjduciation have
shown that where a robust and swift
enforecement is not available then the
benefits of adjudicating a dispute are called
into question.
The courts in South Africa have happily
embraced adjudication without it being
supported by legislation and have shown a
willingness to enforce decisions where parties
do not comply with the decision. It could be
said that they are less willing to allow non
enforcement for minor breaches of natural
justice compared to the courts of the United
Kingdom and Ireland but whether this is a good
thing or something that damages its use and
uptake remain to be seen.
As always please do forward articles, events
and worthy news for inclusion in forthcoming
newsletters.
Sean Gibbs LLB(Hons) LLM MICE FCIOB FRICS
FCIARB, is the Chief Executive Officer of
Hanscomb Intercontinental and is available to
sit as an arbitrator, adjudicator, mediator,
quantum expert and dispute board member.
sean.gibbs@hanscombintercontinental.co.uk

2 | P a g e
WHICH COSTS ARE ACTUALLY
PROHIBITIVE TO ADJUDICATION?
I was very recently part of a panel discussing
the topic of 'Controlling Costs By Capping Fees
of Tribunal Members' at the UK Adjudicators
Annual London Conference 2021. I thought I
would write and share a very brief article on
some of the points I raised during my
presentation.
In my experience in adjudication (as advocate
on more than 100 occasions and adjudicator
on more than 10 occasions), adjudicator's fees
are not actually the most prohibitive aspect of
adjudication at all. This is so, in my opinion, for
the following reasons:
If a party has a good/strong case (which
presumably it does if referring a dispute to
adjudication) then the adjudicator’s fees
should not be a significant concern as other
side is likely to have to pay them when it 'loses'.
Adjudicator’s fees are, in my experience at
least, generally reasonable even where hourly
rates are high.
I would suggest that in most cases the
adjudicator’s fees in disputes which would
otherwise fall within one of the various 'low
value' schemes presently in use in the
marketplace would, in any event, be below the
caps/fixed fees contained in such schemes
(and if they are not then should that not be a
matter for the ANB to review and address?).
Certainly, all of my Decisions have been
reached outside of such 'low value' schemes
but my fees have in any event often been much
lower than the caps/fixed fees which would
have applied if my Decisions had been reached
under such schemes (even where the disputes
were more complex and/or in sums greater
than those contemplated by such schemes).
Party costs (mainly for party representatives)
are, in my view, the most prohibitive aspect of
adjudication – probably because the process
has morphed from something which was
perhaps supposed to be relatively simple and
straightforward (and was, in the beginning, so
I’m told by those who were practicing in the
late 90s and early 00s) to a fast track but
complex legal process with irrecoverable costs
(unless, of course, cost recovery is agreed by
the parties post Notice of Adjudication -
something which rarely, if ever, happens in
practice).
Perhaps there should, therefore, also be some
considerable focus on addressing the issue of
party costs (mainly representation) in

3 | P a g e
adjudication. Some ideas for this could include
the following:
Could we perhaps look at some way of making
party costs recoverable for time wasted on
unfounded jurisdictional challenges?
Could we look at repealing the part of
the Housing Grants Construction and
Regeneration Act 1996 (as amended by
the Local Democracy Economic Development
and Construction Act 2009) which essentially
prohibits all party costs from being recovered,
and perhaps revise it to prohibit only contract
clauses which attempt to pre-apportion party
costs (so a prohibition only on so-called Tolent
clauses, or mutations thereof)?
If party costs were to again be recoverable
then, so to avoid returning to a situation of an
imbalance of power/money and large
companies possibly using a sledgehammer to
crack a nut so to intimidate smaller companies
into not using adjudication (by way of making
smaller companies nervous about facing a
completely disproportionate costs bill for the
larger companies' costs should they 'lose' in
the adjudication proceedings), perhaps
adjudicators could take a balanced view on
what costs would have been reasonable in the
circumstances and only award those
costs? Most adjudicators are experienced
practitioners themselves so would have a very
good idea of what would be reasonable costs
when taking into account the facts of the
dispute and the parties involved.
In my experience, the possibility of recovering
party costs in the event of a successful
adjudication would be of significant interest to
the users of adjudication provided that they
are also protected from a completely
disproportionate costs bill from the other side
should they 'lose' in the adjudication
proceedings.
For the avoidance of doubt, I am not
advocating discarding the existing 'low value'
schemes; merely suggesting that we should
perhaps be placing more focus on the bigger
issue (in my opinion) of party costs.
I hope the above proves of interest to some of
you and promotes further discussion and
debate.
Dean Sayers is a Director with Sayers
Commercial Ltd, and is available to sit as an
adjudicator and arbitrator
E: dean@sayerscommercial.co.uk
T: 07710 422671

4 | P a g e
UK ADJDUCIATORS LONDON 2021
ADJDUCIATION & ARBITRATION
CONFERENCE
The conference was another great success with
attendess from across the globe. If you want to
view the six panels videos or read the
conference pack please go to the UK
Adjudicators website.
https://www.ukadjudicators.co.uk/conferenc
es

5 | P a g e
SCL ANNUAL LONDON LUNCH
UK Adjudicators will be hosting a table again
at the SCL London lunch on the 11 February
2022. It is being held at the Grosvenor House
from 12.00.
If you would like to attend the cost is £90.00
per person plus VAT.
Please email if you would like to attend and
an invoice will be forwarded that requires
immediate payment:
sean.gibbs@hanscombintercontinental.co.uk
TCC COURT JUDGEMENTS
August
• Draeger Safety UK Ltd v The London
Fire Commissioner [2021] EWHC 2221
(TCC) (04 August 2021)
• Eco World - Ballymore Embassy
Gardens Company Ltd v Dobler UK
Ltd [2021] EWHC 2207 (TCC) (03
August 2021)
• The Front Door (UK) Lt (t/a Richard
Reid Associates) v The Lower Mill
Estate Ltd [2021] EWHC 2324 (TCC) (17
August 2021)
• The Royal Parks Ltd & Anor v Bluebird
Boats Ltd [2021] EWHC 2278 (TCC) (11
August 2021)
September
• CC Construction Ltd v Mincione [2021]
EWHC 2502 (TCC) (15 September
2021)
• Citysprint UK Ltd v Barts Health NHS
Trust [2021] EWHC 2618
(TCC) (Hearing 27 September 2021)
• Croda Europe Ltd v Optimus Services
Ltd (Costs) [2021] EWHC 2606
(TCC) (30 September 2021)

6 | P a g e
• Downs Road Development LLP v
Laxmanbhai Construction (UK)
Ltd [2021] EWHC 2441 (TCC) (07
September 2021)
• Equitix EEEF Biomass 2 Ltd v Fox &
Ors [2021] EWHC 2531 (TCC) (27
September 2021)
• Good Law Project Ltd, R (On the
Application Of) v Secretary of State for
Health and Social Care [2021] EWHC
2595 (TCC) (30 September 2021)
• Quadro Services Ltd v Creagh Concrete
Products Ltd [2021] EWHC 2637
(TCC) (28 September 2021)
SAVE THE DATE!
DRBF 24th Annual Conference
6-8 October, Boston, Massachusetts (or virtual
options available). Registration opening soon.
19-21 October: Caltrans DRB/DRA
Training Workshop: This workshop is
required for prospective Caltrans DRB/DRA
member candidates. REGISTER TODAY!

7 | P a g e
Dispute Boards are gaining traction in Latin
America - hot spots like Brazil, Chile, Costa
Rica, and Peru have introduced legislation
supporting the process, and new DBs are
being appointed regularly for construction
projects. The DRBF is supporting this
encouraging growth with an enhanced focus
on supporting the expansion of Dispute
Boards through information, education, and
connection.
Join the DRBF for what is expected to become
an annual event, the DRBF Latin America
Regional Conference. Offered this year as a
virtual only conference, participants will be
able to easily access engaging conversations
with experts skilled in DB application,
download useful resources, and connect with
leaders in DB practice.
https://www.drb.org/2021-08-latam-home-
page
Aakon Construction Services Limited
v Pure Fitout Associated Limited
[2021] IEHC 562
This Irish case concerned Aakon's High Court
application to enforce a favourable
adjudication decision, under section 6(11) of
the Act. The key points of the decision to note
are:
It is in the public interest that construction
payment disputes are to be resolved
expeditiously and that an adjudicator's
decision should be capable of being enforced
immediately in Ireland.
There are significant differences between the
UK and Irish adjudication regimes, therefore
UK case law, while helpful, should not be
simply 'read across' for the purposes of
enforcement under the Act in Ireland.
Even though an adjudicator's decision is not
final and conclusive, it nevertheless gives rise
to an immediate payment obligation that the
court will usually enforce.
The Act considers the adjudicator's decision to
be binding, unless and until it is superseded by
arbitration or fresh court proceedings unless
the dispute is finally settled by agreement of
the parties.
The court's role in these applications is not to
investigate the merits of an adjudicator's

8 | P a g e
decision, but rather to ensure, among other
things, that the Act's requirements and fair
procedures have been followed by the
adjudicator.
The court's discretion to refuse to enforce will
be developed incrementally and may not
mirror the UK law.
Dissatisfied paying parties must launch court
or arbitration proceedings in relation to the
relevant adjudication decision, before they can
seek to have the decision overturned.
The respondent had argued that the
adjudicator had acted outside of his
jurisdiction and that his decision was,
accordingly, invalid. The court found that the
respondent's arguments had no merit and was
satisfied that leave to enforce should be
granted to the applicant.
FORTHCOMING EVENTS
Thursday, October 7,
2021 - 5:00 PM
Adjudication in Belfast & Dublin after 25 and 5
years respectively: a view from the bench
Online
Moderator: Niav O'Higgins, Arthur Cox
Speaker(s): Mr Justice Mark Horner,
(Belfast) & Mr Justice Garrett Simons
(Dublin)
For more info
Tuesday, October 19,
2021 - 9:00 AM
An Introduction to Working with Clerks
Online
For more info
Tuesday, October 19,
2021 - 11:00 AM
2021 SCL Ireland conference
Online
Speaker(s): Susan Ahern B.L, Gary
Born, Roger Ter Haar QC, Dr Hamish
Lal, Darren Lehane SC, Sian

9 | P a g e
Mirchandani QC, Dr. David Sharpe QC
SC & Jonathan Pawlowski
For more info
Monday, November 1,
2021 - 5:00 PM
Asset tracing and recovery in construction
disputes
Online
Moderator: Audrey Byrne, McCann
Fitzgerald, Dublin
Speaker(s): Paula Gibbs, Solicitor,
Louise Wright, Global Advocacy and
Legal Counsel Law Firm, Paul Jacobs,
Grant Thornton & Alexander Thavenot,
Simmons & Simmons
For more info
Tuesday, November 2,
2021 - 9:00 AM
An Introduction to Construction Insurance
Online
Speaker(s): Rob Goodship, Fenchurch
Law and Rachel Heald, Hawkswell
Kilvington
For more info
Tuesday, November 2,
2021 - 6:30 PM
The Supreme Court decision in Triple Point v
PTT
London
Chair: Mr Justice Waksman
Speaker(s): Helen Dennis, 4 Pump
Court
Venue: National Liberal Club and Online
For more info
Wednesday, November 3,
2021 - 5:30 PM
9th International Society of Construction Law
Conference
Overseas
Venue: Cordis Hotel, 83 Symonds St,
Grafton, Auckland 1010, New Zealand
For more info

10 | P a g e
2021 SCL IRELAND CONFERENCE
October 19th, 2021 11:00 AM to 1:15PM
REGISTER NOW
Opening by Arran Dowling-Hussey B.L
11.05-11.50 - 'Key issues in using
arbitration in construction insurance
disputes'.
Dr. Hamish Lal, Sian Mirchandani
QC and Roger Ter Haar QC
Moderated by: Darren Lehane S.C (Law
Library, Dublin)
11.50-12.35 - 'Where Next For Domestic
Construction Arbitration.'
John Trainor SC, Law Library, Dublin
and Nicola Dunleavy, partner Matheson,
Dublin.
Moderator: Jonathan Pawlowski
12.35 - 1.15pm - Closing speech
Gary Born
Moderated by: Susan Ahern B.L (Law
Library, Dublin)
SCL INTERNATIONAL CONFERENCE
2021
The Society of Construction Law 9th
International Conference has been postponed
till November 2021.
http://www.constructionlaw2021.com/scl21

11 | P a g e
GLOBAL SWITCH ESTATES LTD V
SUDLOWS LTD [2020] EWHC 3314
(TCC)
The 2020 case provides ten key principles that
adjudicators should keep in their minds when
dealing with arguments of set off:
The referring party is entitled to define the
dispute referred to adjudication by its notice.
The responding party is not entitled to widen
the scope of the adjudication by adding further
disputes.
The responding party is entitled to raise
defences to the claim made by the referring
party.
Where the referring party seeks declaration as
to valuation, the responding party is not
entitled to seek a competing declaration.
Where the referring party seeks payment, the
responding party is entitled to rely on all
available defences, including valuation of other
element of the works.
It is for the adjudicator to decide whether
defences put forward are valid.
Where the adjudicator has asked the relevant
question, whether the answer is right or wrong
is immaterial and the decision will be enforced.
If the adjudicator fails to consider whether the
matters put forward by the responding party
are a valid refence to the claim in law and on
the facts, that may be a breach of the rules of
natural justice.
To be a breach of the rules of natural justice,
the breach must be material and the case must
be plain and obvious.
Where there is a material breach of the rules
of natural justice, the decision will not be
enforced.
CC CONSTRUCTION V MINCIONE
[2021] EWHC 2502 (TCC)
In the adjudication, the contractor claimed
that the sum set out in its Final Statement had
become due on a smash and grab basis. One
defence run by the employer was that they
were entitled to set off liquidated damages.
The adjudicator said that he was not
considering this defence because “it is not part
of the dispute I have been asked to decide” (in
the Notice of Adjudication). The employer
resisted the enforcement of the adjudicator’s
decision on the basis that this was a deliberate
failure by the adjudicator to consider a
defence, this being a breach of natural justice.
The judge held that the employer was correct
so the adjudicator’s decision was not
enforceable. The judge invited the parties to
provide further submission on severability but

12 | P a g e
indicated that his initial view was that he would
be willing to sever the decision so that the
contractor could recover the balance.
However, this tentative conclusion on
severability should be read with caution, given
that the judge invited further submissions
indicating that he was still unsure as to the
correct approach.
This decision serves as a reminder to parties
that, where an adjudicator does not consider
and decide an issue raised in an adjudication,
then that adjudication decision is likely to be
unenforceable. Parties, and their advisors,
would be well advised to encourage
adjudicators to consider all defences raised on
their merits rather than trying to persuade an
adjudicator that a defence is out-of-scope. The
latter approach is likely to lead to an
unenforceable decision.

Aldwych House, 71-91 Aldwych, London, WC2B 2HN
www.Adjudication.org

HFWLDN52443177‐1

The Adjudication Society

proudly announces their

Twentieth Annual Conference

To be held at
The Westin London City
60 Upper Thames Street, London EC4V 3AD
(https://www.marriott.co.uk/hotels/maps/travel/lonwi-the-westin-london-city/?maps)
on Thursday 18 November 2021
Commencing at 09:15 hours
(registration from 08:45 hours)

Keynote Speaker: Lord Justice Coulson
Conference Chairman: Hamish Lal

Speakers to include: Michael Bowsher QC; Monckton Chambers
Martin Burns; RICS DRS
Jonathan Cope; MCMS
John Fletcher; RICS DRS
Karen Gough; 39 Essex Chambers
Nicholas Gould; Fenwick Elliott LLP
Krista Lee QC; Keating Chambers
Chris Linnett
Theresa Mohammed; Trowers & Hamlins LLP
Emily Monastiriotis; Simmons & Simmons LLP
Dominique Rawley QC; Atkin Chambers.
Stacy Sinclair; Fenwick Elliott LLP
Marion Smith QC; 39 Essex Chambers
Anthony Speaight QC, 4 Pump Court
Doug Wass; Partner; Macfarlanes LLP

retained by popular request Revolving Workshops
including a Basic ABCs of Adjudication Strategy (for a junior audience)

Aldwych House, 71-91 Aldwych, London, WC2B 2HN
www.Adjudication.org

HFWLDN52443177‐1

The following charge will be made for this event:

If Booked on or before 15 October 2021:
Adjudication Society/ Society of Construction Law Members: £200.00
Non-members: £250.00
If booked on or after 16 October 2021:
Adjudication Society/ Society of Construction Law Members: £220.00
Non-members: £270.00

Special Student Rate (including 2021 Membership):
Students (restricted to 10 places): £75.00
(enquiries concerning student eligibility to richard.booth@hfw.com; adhussey@4-5.co.uk;
TMohammed@trowers.com)
(Please note that the Society is not registered for VAT purposes)
Refunds Policy:
Cancellation received by the Society more than 28 days prior to Conference Date – 100%
Cancellation received by the Society 14-28 days prior to Conference Date – 50%
Cancellation received by the Society less than 14 days before Conference Date – 0%

Bookings can be made through the Adjudication
Society’s Website www.adjudication.org

HFWLDN52442732-1
Adjudication Society Annual Conference
18 November 2021
"Celebrating the First 25 Years of Adjudication under
The Housing Grants, Construction and Regeneration
Act 1996"
London
Time Topic Speaker
8.45 –
9.15
Registration and Coffee
9:15 –
9:20
Introduction
including Administration & Slido
Richard Booth (HFW LLP)
9:20 –
9:30
Chairman's Welcome Hamish Lal (Akin Gump Strass Hauer & Feld LLP)
9:30 –
11:00
Fire Place Discussion
Perspective and
Strategy behind 5 key
cases over the past 25
years
Fire Place Chaired by Dominique Rawley QC
(Atkin Chambers):
 Michael Bowsher QC (Monckton Chambers)
The First Adjudication Enforcement:
Macob Civil Engineering v Morrison
Construction Ltd; [1999] EWHC 254 (TCC)
 Anthony Speaight QC (4 Pump Court)
At Any time:
Connect South Eastern v MJ Building
Services Group PLC; [2005] EWCA Civ
193
 Emily Monastiriotis (Simmons & Simmons
LLP)
Liability for Fees:

HFWLDN52442732-1
Christopher Michael Linnett v Halliwells
LLP; [2009] EWHC 319 (TCC)
 Karen Gough (39 Essex Chambers)
Conflict of Interest:
Cofely Limited v Anthony Bingham &
Knowles; [2016] EWHC 240 (Comm)
 Doug Wass (Macfarlanes LLP)
Smash 'n' Grab:
talking on Grove (various)
11:00 –
11:20
Coffee Break
11:20 –
12:20
Panel Discussion
The next 25 years –
what can be changed
and/ or improved
upon?
Panel Discussion Chaired by Krista Lee QC
(Keating Chambers):
 John Fletcher (RICS DRS)
dispute resolution, low cost adjudication
scheme
 Stacy Sinclair (Fenwick Elliott LLP)
Technology
 Speaker 3 (tbc)
 Speaker 4 (tbc)
12:20-
12:30
Society's AGM
(Members who are not attending the Conference are warmly invited to the AGM)
12:30 –
13:40
Lunch
13:40 –
14:50
Workshop 1
Adjudication in a Post-
Pandemic World Scenarios
Martin Burns (RICS DRS);
Workshop Leader 1
Jonathan Cope (MCMS);
Workshop Leader 2

HFWLDN52442732-1
14:50 –
15:10
Tea Break
15:10 -
16:20
Workshop 2 –
stream 1
International
Adjudication
Nicholas Gould
(Fenwick Elliott
LLP); Workshop
Leader 1
Marion Smith QC
(39 Essex
Chambers);
Workshop Leader 2
Workshop 2 –
stream 2
Basic ABCs of
Adjudication
Strategy
[aimed at junior
audience]
Theresa Mohammed,
(Trowers & Hamlins
LLP);
Workshop Leader 1
Chris Linnett;
Workshop Leader 2
16:20 –
17:00
Closing Key Note Speech Lord Justice Coulson
(introduced by the Chairman)
17:00
onwards
Celebratory English Sparkling Wine Reception (with beers and soft drinks)

UK Adjudicators October 2021 Newsletter

Recommended

Recommended

More Related Content

What's hot

What's hot (20)

Similar to UK Adjudicators October 2021 Newsletter

Similar to UK Adjudicators October 2021 Newsletter (20)

Recently uploaded

Recently uploaded (20)

UK Adjudicators October 2021 Newsletter