UK Adjudicators September 2019 newsletter discussing construction adjudication around the world with a look at the UK, Singapore and Australia in this edition.

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SEPTEMBER 2019 NEWSLETTER
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EDITORS COMMENTS
Many thanks to everyone that supported the
2019 London Adjudication & Arbitration
Conference. I trust you enjoyed the world
class line up of speakers and the excellent
networking opportunities throughout the day
and at the evening drinks.
The 2020 London Adjudication & Arbitration
Conference takes place on the 20 August in
central London. If you would like to attend,
speak, support, sponsor or exhibit please get
in touch to express your interest.
The next opportunity we have to network is at
the SCL Bristol lunch. We have taken a table at
the SCL Bristol Lunch on the 11 October 2019,
although the event is a sell-out, we still have
places available on the table. If you’d like to
attend the cost is £62.50 + VAT. Please
contact me on my work email if you would
like to attend and I’ll provide an invoice and
bank details for payment.
The Adjudication Society Annual conference
takes place on the 7 November 2019 I do
hope that our panellists will be able to attend
the conference. I am hoping that we can meet
up after for an informal dinner and welcome
suggestions as to restaurants close to the
venue.
UK Adjudicators are a supporting organisation
for the Dispute Resolution Board Conference
that takes place in Cape Town, South Africa in
May 2020. If you can attend; this is an
excellent networking and knowledge sharing
event for those interested in Dispute Boards
and being a Dispute Board Member.
We are hoping to hold another conference in
Edinburgh in March 2020 and welcome
expressions of interest to attend, speak,
support, sponsor or exhibit.
As always, I would encourage you to forward
articles, commentaries, news and events that
our readers would find of interest and share
details of our panel and nomination service
with friends, colleagues and clients.
We will be taking a table at the SCL London
lunch again on the 7 February 2020 and will
release details nearer the time.
Sean Gibbs LLB(Hons) MICE LLM FCIOB FRICS
FCIARB, is a director with Hanscomb
Intercontinental and is available to serve as an
arbitrator, adjudicator, mediator, quantum
expert and dispute board member.
sean.gibbs@hanscombintercontinental.co.uk

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BENNETT (CONSTRUCTION) LTD V
CMC MBS LTD [2019] EWCA CIV
1515 (30 AUGUST 2019)
Lord Justice Coulson sat on this appeal from
the decision of His Honour Judge Waksman
QC in the TCC and gave judgement for the
Court of Appeal on the 30 August 2019.
The appeal looked at the relationship
between milestone payments agreed freely
between the parties and the requirements of
the Construction Act as to an adequate
payment mechanism.
Bennett was constructing a new hotel in
London and contracted with Verbus for the
design, supply and installation of
prefabricated modular bedroom units for the
hotel. The proposed new hotel was to be built
at Woolwich, in East London, the developer
was Key Homes and the eventual operator of
the hotel was to be Park Inn. The bedroom
units were to be made in China and then
shipped to Southampton.
The contract between Bennett and Verbus
incorporated the standard form JCT contract
but replaced the usual interim valuation
payments with five milestone payments.
Three of the milestone payments had a
requirement for “sign-off” before payment
would be made. The term “sign-off” was not
expressly defined in the contract. Verbus
manufactured a sample of the bedroom units
to be used, but Bennett rejected it as it did
not comply with the contract requirements.
Verbus ignored the rejection and continued to
produce all the bedroom units without
addressing the matters concerning the
rejection.
Verbus requested payment, Bennett declined
to make payment and the parties fell out and
a dispute about entitlement to payment
crystallised. Bennett relied on the absence of
“sign-off” and Verbus relied upon its
argument that such a requirement did not
comply with the payment provisions and
requirements of the Construction Act. His
Honour Judge Waksman QC in the TCC held
that two of the milestones did not comply
with the requirements of the Construction Act
because they required “sign off” by Bennett
and could be withheld at Bennett’s discretion.
A further milestone also required “sign off”
but was held by the court to mean achieving
completion of the relevant stage. The court
considered that the interim valuation
provisions of the Scheme should be
incorporated in their entirety to replace all
the milestones under the contract except for
an initial milestone that related to an initial
deposit that was required to be paid. The first
instance judgment in favour of Verbus
ordered Bennett to make payment. This was
despite the bedrooms being rejected under
the contract.

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SEPTEMBER 2019 NEWSLETTER
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Bennett appealed against the judgement and
the Court of Appeal was asked whether
milestones 2 and 3 complied with the
Construction Act and if they did not to what
the extent should the payment provisions in
the Scheme be implied into the contract. The
Court of Appeal held that “sign-off” denoted
an objective state of completion that the
relevant units had to reach before payment
was due. Applying Roberts v Bury
Commissioners if the units were complete,
Bennett could not refuse to allow “sign-off”
and “take advantage of the non-fulfilment of
a condition the performance of which has
been hindered by himself”. The Court did not
consider that the failure to specify a due date
and a final date for payment contravened the
Construction Act, “Parties are always free to
agree interim payments by reference to
percentages of completion. Thereafter, the
courts expect the parties to adopt business
common sense as to the arrangements for
invoicing and payment.”
The Court then proceeded to consider the
issues arising under Scheme due to their
wider importance to the construction industry
noting that the effect of the first instance
judgement in the TCC had created "a
significant reapportioning of the commercial
risk which the parties had agreed". The Court
commented that, whilst it was settled law
that the payment provisions of the Scheme
were only to be implied insofar as necessary
to remedy any non-compliance with the
Construction Act, there was very little
authority on how the court should go about
that task. Noting that the Scheme was “badly
drafted”, the Court considered it was possible
to pilot a course through the provisions in
order to achieve “a common-sense result that
… does no significant violence to the parties’
original agreement”.
The Court held that the TCC was wrong to
replace non-compliant milestone provisions
with the interim valuation provisions set out
in paragraph 2 of the Scheme. Instead those
provisions should be made to work by using
paragraph 7 of the Scheme which refers to
“any other payment under a construction
contract” and stipulates a due date 7 days
“following the completion of the work to
which the payment relates”.
Having had the law stated most clearly by
Lord Justice Coulson it should be noted that
the court was informed by Ms Doerries QC
that the units were scrapped, how important
this fact was in deciding no payment was due
remains to be seen, but is likely to provide
ground for further legal argument in the
future when parties try to distinguish their
case from this one.
https://www.bailii.org/ew/cases/EWCA/Civ/2
019/1515.html

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SEPTEMBER 2019 NEWSLETTER
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NORTHERN TERRITORIES
CONSTRUCTION CONTRACTS
(SECURITY OF PAYMENTS)
LEGISLATION AMENDMENT BILL
2019
The Bill amends the Construction Contracts
(Security and Payments) Act 2004, the
Community Justice Centre Act 2005 and the
Construction Contracts (Security of Payments)
Regulations 2005.
The purpose of this Bill is to:
(a) clarify when a payment dispute arises,
when adjudication may occur, and how
determinations may be enforced;
(b) standardise the timeframes in which
something must be done under the
Construction Contracts (Security and
Payments) Act to that of business days and
define the meaning of that term;
(c) modify adjudication timeframes and
revise the processes for appointing
adjudicators;
(d) provide for ‘opting out’ of
adjudication under the Construction Contracts
(Security and Payments) Act 2005 for high
value construction contracts;
(e) provide a mechanism that will allow
the monetary limit for adjudications that may
be undertaken by the Director of the
Community Justice Centre to be determined
in regulations; and
(f) transfer review jurisdiction under Part
5 of the Construction Contracts (Security of
Payments) Act 2004 from the Local Court to
the Northern Territory Civil and
Administrative Tribunal (NTCAT).
https://legislation.nt.gov.au/LegislationPortal
/Bills/~/link.aspx?_id=7A579C8909264E3195F
2B506098FEE7B&_z=z
LIMITATION PERIODS FOR
BRINGING CLAIMS UNDER SOP
LEGISLATION IN SINGAPORE
Following changes to the SOP legislation in
Singapore a party no longer has six years to
commence a claim under the SOP legislation.
The new period is 30 months and is calculated
from
a) The date which the construction work
was last carried out / goods or
services supplied;
b) the last document certifying the
completion of the project; or
c) the last temporary occupation permit
issued for the construction project.

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The periods in other jurisdictions vary for
example in Australia Queensland the
period is 6 months after the construction
work to which the claim relates was last
carried out or the related goods and
services to which the claim relates were
last supplied.
In the United Kingdom claims in
adjudication are arguably limited by the
nature of the cause of action. The
Limitation Act 1980 provides that an
action shall not be brought:
a. In the case of an action in tort, six years
from the date on which the cause of
action accrued (s.2). For our purposes this
would most likely be a claim in
negligence;
b. In the case of a simple contract, six
years from the date on which the cause of
action accrued (s.5);
c. In the case of a specialty, which
includes a contract under seal, twelve
years from the date on which the cause of
action accrued (s.8);
d. In the case of an action for negligence,
three years from the date of knowledge if
the three-year period expires more than
the six years after accrual of the cause of
action (s.14A).
In the TCC case of Connex South Eastern
Ltd v MJ Building Services Group plc the
Judge stated that: "Whilst no limitation
period is laid down for instituting an
adjudication, a limitation defence must be
taken into account by the adjudicator."
In Aspect Contracts (Asbestos) Ltd v
Higgins Construction plc [2015] UKSC 38
the Supreme Court that there is an
implied term that a paying party in an
adjudication under the Scheme for
Construction Contracts (England and
Wales) Regulations 1998 (SI 1998/649)
(Scheme for Construction Contracts 1998)
is entitled to have the dispute determined
by litigation and to repayment of monies
paid, if those court proceedings are
successful. Further, that the applicable
time limit for making such a claim was six
years from when it made payment and
not the original limitation period.
However, the court would not find a
similar limitation period in respect of
Higgins’ counterclaim.
Parties in Singapore may not be able to
bring a SOP claim after 30 months, but
they can still use arbitration or the courts
to pursue a claim for payment.
Should there be a different limitation
period brought into play in the United
Kingdom?

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SEPTEMBER 2019 NEWSLETTER
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CONSTRUCTION (RETENTION
DEPOSIT SCHEMES) BILL 2017-19
As you’d expect the Bill has taken a lower
priority in parliamentary time than other
matters.
The next reading date is unknown, you find
out limited information via the following link:
https://publications.parliament.uk/pa/bills/cb
ill/2017-2019/0148/18148.pdf
2019 ENGLAND AND WALES HIGH
COURT (TECHNOLOGY AND
CONSTRUCTION COURT)
August
• AIC Ltd v The Federal Airports
Authority of Nigeria [2019]
EWHC 2212 (TCC) (13 August
2019)
• Corebuild Ltd v Cleaver &
Anor [2019] EWHC 2170 (TCC)
(07 August 2019)
• NUA Facades Ltd & Ors v
Brady (t/a Terry Brady
Developments Ltd) [2019]
EWHC 2184 (TCC) (08 August
2019)
• Ohpen Operations UK Ltd v
Invesco Fund Managers Ltd
[2019] EWHC 2246 (TCC) (16
August 2019)
• Royal Cornwall Hospitals NHS
Trust v Cornwall Council
[2019] EWHC 2211 (TCC) (13
August 2019)
• Solaria Energy UK Ltd v
Department for Business
Energy And Industrial
Strategy [2019] EWHC 2188
(TCC) (22 August 2019)
• Triumph Controls - UK Ltd &
Anor v Primus International
Holding Company & Ors
[2019] EWHC 2216 (TCC) (13
August 2019)

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SEPTEMBER 2019 NEWSLETTER
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ESCL CONFERENCE 2019
The European Society of Construction Law
2019 conference will be held from the 23rd to
24th October 2019 in Delft, Netherlands.
https://www.escl.org/events/escl-annual-
conference-2019-legal-implications-climate-
change-case-circularity
SCL INTERNATIONAL CONFERENCE
2020
The Society of Construction Law 9th
International Conference is being held at the
Cordis Hotel Auckland from the 4th
to the 6th
November 2020.
http://www.constructionlaw2020.com/scl20
ADJUDICATION SOCIETY
ADJUDICATION PANEL CASE
STUDIES AND DISCUSSION
Tuesday, 15 October 2019 6 for 6.30pm
Panellists: 3PB Barristers, BDB
Pitmans, Devonshires and MCMS
Venue: BW Interiors Ltd, 5 Old Bailey, London
EC4M 7BA
https://www.adjudication.org/sites/default/fil
es/Adjudication%20Society%20London%20%2
6%20South%20East%20Event%20-
%2015%20October%202019.pdf
ANNUAL CONFERENCE 2019
The Society's Eighteenth Annual Conference
will be held at the Hilton London Metropole,
225 Edgware Rd, Paddington, London W21JU
on the 7 November 2019.
https://www.adjudication.org/events/annual-
conference-2019

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SEPTEMBER 2019 NEWSLETTER
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FIDIC CONFERENCES 2019
FIDIC INTERNATIONAL CONTRACT USERS'
CONFERENCE (UK)
Main Conference: 3 & 4 December 2019
Workshops: 2 & 5 December 2019
London, UK
https://law.knect365.com/fidic-international-
contract-users/
Main Conference: 5 & 6 November 2019
Workshops: 4 & 7 November 2019
Avani Resort Livingstone, Zambia
https://law.knect365.com/fidic-africa-
contracts/
UK ADJUDICATORS DINNER
The UK Adjudicators will be holding an
informal dinner after the Adjudication Society
Annual Conference on the 7 November 2019.
Anyone with an interest in adjudication is
welcome to attend. Further details will follow
in due course.
DRBF CONFERENCES 2020
The DRBF International Conference takes
place from the 27 to 29 May 2020 at the
Radisson Blu Cape Town, South Africa.

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19 September 2019, IET London
https://www.scl.org.uk/participate/events/so
ciety-construction-law-london-conference