UKA March 2020 newsletter

WWW.UKADJUDICATORS.CO.UK
MARCH 2020 NEWSLETTER
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EDITORS COMMENTS
UK Adjudicators will be one of the ten ANBs
offering the Construction Industry Council
Low Values Disputes Model Adjudication
Procedure (CIC LVD MAP). The formal launch
takes place on the 18 March 2020 at the RICS
in London. Application forms will be issued to
apply to join the UKA CIC LVD MAP panel
please make sure you return the forms
promptly when received.
The 2020 Edinburgh Adjudication &
Arbitration Conference takes place on Friday
the 6th March in Edinburgh. The venue for the
2020 conference will be the Royal Society of
Edinburgh at 25-26 George Street, Edinburgh.
If you would like to attend, support, sponsor
or exhibit please get in touch to express your
interest. Panel members can book discounted
tickets through the Eventbrite website link
which can be found at the rear of this
newsletter.
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. We have a
much larger venue being lined up for the 2020
venue as we reached our capacity limits in the
last 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.
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. There is
also an opportunity to attend the Cheltenham
Gold Cup on the 13 March 2020 as we have a
few spaces available in a hospitality box.
If you can organise a local event or host an
event for us, please do get in touch. We hope
to have a North West event in the first
quarter of 2020 and will provide more details
in due course.
Sean Gibbs LLB(Hons) LLM MICE 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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MPB v LGK [2020] EWCH 90 (TCC)
This was an application to set aside an award,
pursuant to s.67 of the Arbitration Act 1996,
on the grounds that there was no arbitration
agreement, and so the Tribunal did not have
jurisdiction over the dispute. Deputy Judge
Buehrlen QC had to consider whether the
contract incorporated clause 11 of LGK’s
standard conditions which made provision for
adjudication and then arbitration under the
Construction Industry Model Arbitration Rules
(“CIMAR”).
The Judge described the evidence surrounding
the formation of the contract as being
incomplete. There were three adjudications;
two started by LGK, and the third by MPB
which was commenced by reference to clause
11 of LGK’s Terms. LGK commenced
arbitration proceedings in relation to the
decision made in this third adjudication.
MPB submitted that whilst LGK’s Terms were
included with the Quotation they did not form
an integral and indivisible part of it in that
they were additional to the 4 page quotation
itself. LGK said that on proper construction of
the contract, the Order incorporated LGK’s
Terms. Both the description of the work and
the value were “based on” the various
contractual documents listed in the Order.
You could not sever LGK’s Terms from the first
4 pages of the Quotation; they were relevant
to both the scope of work and the price. LGK’s
Terms formed part of the Contract but they
accepted that MPB’s terms took precedence
in the event of incompatibility. But LGK also
relied on the deletion by LGK of the words “It
is required that you withdraw any of your
conditions which are at variance with the
conditions contained therein” as a refusal on
the part of LGK to withdraw any of its T&Cs.
As MPB’s Terms were silent as to dispute
resolution, the arbitration agreement in LGK’s
Terms applied.
The Judge agreed with MPB that one should
be slow to conclude that the parties agreed
that both of their standard terms should apply
to the contract, given the inevitable risk of
contradictions in those terms and resulting
potential uncertainty. However, it is not
uncommon for construction contracts to be
set out in a number of different documents
and to contain different sets of standard
terms.
However, the Judge also agreed that,
although not expressly referred to in the first
4 pages of the Quotation, MPB were given
clear notice of LGK’s Terms. The scope of work
and price set out in the Quotation were based
on, and to be read in conjunction with, LGK’s
appended terms and conditions. It followed
that LGK’s Terms formed part of the

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Quotation and were an integral part of it. The
contract was negotiated and drawn up by two
construction companies. It was not a
document prepared by lawyers. In the Judge’s
view:
“a reasonable person having all the
background knowledge which would have
been available to the parties would have
understood the express reference in the
Order to be “based on quotation Q17729 Rev
B dated 11/04/2016 …” as being a reference
to the Quotation and as meaning that the
Quotation was intended to form part of the
Contract.”
Here, the parties did expressly incorporate
the Quotation into their agreement and LGK’s
Terms clearly formed part of that quotation.
It was also LGK’s case that MPB elected to
rely on LGK’s Terms and clause 11 for the
purposes of Adjudication no. 3 and
subsequent enforcement proceedings and
that as a result it was not now open to MPB
to deny that LGK’s Terms and/or clause 11
were incorporated into the Contract pursuant
to the doctrine of approbation and
reprobation. The Judge agreed that MPB
“clearly and unequivocally” elected to rely on
clause 11 as setting out the dispute resolution
provisions governing the parties’ relationship.
Both the notice of adjudication and the
Referral expressly relied on and referred to
clause 11. In choosing to rely on clause 11 as
the applicable dispute resolution mechanism
for the purposes of the adjudication, MPB
could not later challenge the second
(arbitration) tier of that provision.
Jeremy Glover is a partner with Fenwick Elliott
LLP
jglover@fenwickelliott.com
Fenwick Elliott LLP
Aldwych House
71-91 Aldwych
London, UK
WC2B 4HN
+44 (0)20 7421 1986

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SOCIETY FOR COMPUTERS AND
LAW ADJDUCIATION SCHEME
The SCL's Adjudication Scheme (the
"Scheme") is designed to be a swift and
affordable procedure to resolve disputes
whilst maintaining the parties' commercial
relationships and goodwill in ongoing
technology projects. The Scheme was
launched in October 2019 and was developed
for disputes arising from contracts for the
provision of technology-related goods and
services, including but not limited to:
• Software development contracts
• Outsourcing arrangements
• Systems integration contracts
• IT consultancy contracts
• Software licensing agreements
• Blockchain / smart contracts and
• Cloud computing contracts
This Scheme is contractual and voluntary and
its use must be expressly agreed between the
parties. There is no restriction on the size or
scope of any dispute referred to the Scheme;
the Scheme's only restriction is that the
dispute be capable of resolution within 3
months. The SCL anticipates the Scheme's
uptake to be sharp, with parties being able to
stipulate that disputes be referred to the
Scheme using SCL's model clauses in new
technology contracts immediately
Adjudicators appointed under the Scheme are
encouraged to resolve disputes "at the
earliest opportunity", with a back stop date of
3 months. The procedure uses expedited
timescales to achieve this, with statements of
case to be exchanged between the parties
within 30 working days of the commencement
of the procedure (by service of a Dispute
Notice). The Scheme is designed to be largely
paper-based with strict limits imposed on the
volume of documents each party may submit.
Following the adjudicator's decision, the
parties may reopen a dispute by issuing
subsequent proceedings or commencing
arbitration up to six months after the
decision. If no challenge is made within 6
months, the decision will become final and
binding. If parties do challenge the decision
within this time frame, the decision will only
be binding on the parties once the dispute is
finally determined by a court or an arbitrator.
The parties are jointly and severally
responsible for the adjudicator's fees and
expenses and the adjudicator's decision will
allocate the payment of the parties' costs,
unless they agree on costs separately. The
Scheme caps the adjudicator and expert fees
in an attempt to keep costs low and to
provide parties with more certainty.

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The adjudicator's decision can be enforced by
the successful party applying to the
Technology and Construction Court ("TCC") to
enforce the award using the TCC's rapid
enforcement procedure. Such enforcement
proceedings are ordinarily expedited to be
listed within 28 days. This will avoid any
further unnecessary delays following
resolution of the dispute under the Scheme.
Generally, the TCC will uphold adjudicator's
decisions, unless the adjudicator had no
jurisdiction to make the decision or there has
been a breach of the Scheme rules or of
natural justice.
CONFLICTS OF INTEREST WITH
PROFESSIONAL ADVISORS
The last working day of 2019 saw another
judicial review of an adjudication
determination (Yousseff v Maiden [2019]
NZHC 3471), this time focused on conflict of
interest and apparent bias. Despite judicial
review being generally discouraged and
relatively rare, there has been something of a
run lately, and in this case the adjudicator’s
determination was quashed.
The Jamessef Trust (the Principal and
applicant) contracted Bespoke Design and
Build Ltd (the Builder and respondent) to
construct a house in Mangawhai. In 2018 the
Builder suspended work for alleged non-
payment. This resulted in the Principal
cancelling on the basis of a fundamental
breach by the Builder, who responded
rejecting this and cancelling the contract
itself.
So, with daggers drawn, the parties brought
Construction Contract Act (CCA) adjudications
against one another for amounts said to arise
from the building contract cancellation.

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The same adjudicator was nominated and
accepted for both adjudication proceedings,
which were consolidated and heard together.
The adjudicator concluded that the Principal’s
cancellation was unlawful meaning the
Builder’s cancellation prevailed, and, after
netting off amounts due each way, the
Principal was to pay the Builder $125,685
(including lost profit and GST).
Rather than have the dispute heard afresh,
the Principal instead sought judicial review of
the determination. Despite raising multiple
arguments, their main contentions were that
the adjudicator had failed to disclose a
conflict of interest and had apparent bias.
The CCA requires an adjudicator to disclose
“any conflict of interest” (sections 35 and 41).
In this case the adjudicator had been/was
engaged as an expert witness in separate
proceedings of another client of the Builder’s
law firm. The Court concluded that this
relationship with the firm was sufficient to
create a conflict of interest, particularly as the
adjudicator had been engaged on that firm’s
recommendation, meaning his appointment
and fees on those matters had derived from
his relationship with them. The relationship
also implicitly presented potential future work
opportunities.
For similar reasons, the Court also concluded
that the adjudicator was disqualified for
apparent bias (albeit there was no evidence of
actual bias). In reaching this conclusion, the
Court noted that a “fair minded observer
might reasonably apprehend that [given his
professional relationship with the law firm,
the adjudicator] might not bring an impartial
mind” to the dispute.
Relationships between law firms and industry
experts are commonplace. In close-knit New
Zealand, Youssef might come as a surprise to
some. It essentially confirms that adjudicators
are unable to accept CCA appointments
where they are working with one of the
parties’ legal advisors in parallel (or near
parallel) on other matters. It also highlights
that adjudicators must be alive generally to
any commercial relationship they may have
with a party’s advisors, possibly even ones
that are not presently active. As always,
judging this will be a matter of fact and
degree in each case.
Nick Gillies Partner
Nick.Gillies@heskethhenry.co.nz

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Sean Gamble
Solicitor
Sean.Gamble@heskethhenry.co.nz
DAMAGES AT LARGE: TRIPLE POINT
AND FIDIC
Triple Point Technology, Inc v PTT Public
Company Ltd [2019] EWCA Civ 230
Triple Point Technology, Inc v PTT Public
Company Ltd [2017] EWHC 2178 (TCC)
PBS Energo AS v Bester Generacion UK Ltd and
others [2020] EWHC (TCC)
Introduction
Triple Point was a case heard in the English
Court of Appeal in March 2019 concerning the
operation of liquidated damages clauses in
the event of termination of a bespoke form of
software contract. Sir Rupert Jackson gave the
leading judgment, suggesting that where the
contractor fails to complete the project,
general damages at common law may be a
more logical remedy than liquidated damages
up to the date of termination, with general
damages thereafter. This was a major
departure from construction industry practice
and understanding.

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Facts
PTT contracted with Triple Point to replace an
existing commodities trading system and
develop it to accommodate new types of
trade. The contract was subject to the laws of
England and Wales.
The work was delayed and, following a
dispute concerning the payment of invoices,
PTT terminated the contract. Triple Point
issued proceedings for the recovery of
outstanding sums. PTT denied that any further
payments were due and counterclaimed
liquidated damages for delay and damages
due upon termination of the contract.
Paragraph 3 of Article 5 ‘Schedule of Services’
(‘Article 5.3’) provided for liquidated damages
to be paid at a rate of 0.1% of ‘undelivered
work per day of delay from the due date of
delivery up to the date PTT accepts such
work’.
Article 12.3 ‘Liability and Responsibility’
concerned the cap on damages. Sentence 2 of
the clause stated: ‘The total liability of
CONTRACTOR to PTT under the Contract shall
be limited to the Contract Price received by
CONTRACTOR with respect to the services or
deliverables involved under this Contract.’
Sentence 3 stated: ‘Except for the specific
remedies expressly identified as such in this
Contract, PTT’s exclusive remedy for any claim
arising out of this Contract will be for
CONTRACTOR, upon receipt of written notice,
to use best endeavour [sic] to cure the breach
at its expense, or failing that, to return the
fees paid to CONTRACTOR for the Services or
Deliverables related to the breach.’
At first instance, Jefford J held that PTT was
entitled to recover liquidated damages for
delay pursuant to Article 5.3 up to the date of
termination. It was held that these damages
were not subject to the cap under Article 12.3
because they fell under the ‘specific remedies’
referred to in Sentence 3: ‘…Article 5 provides
such an exception since it expressly allows the
recovery of a percentage of the value of
undelivered work (which by definition has not
been paid for).’ [275]
Triple Point appealed. Amongst other things,
Triple Point claimed 1) that liquidated
damages for delay were irrecoverable and 2)
should liquidated damages be recoverable,
they would be subject to the Article 12.3 cap.
Court of Appeal judgment
Having reviewed a number of authorities, Sir
Rupert Jackson identified three different
approaches to the application of liquidated
damages clauses post-termination:
1) The clause does not apply – general
damages have to be proved 1;
2) The clause applies up to termination
of the first contract (the ‘orthodox analysis’) 2
;

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3) The clause continues to apply until
the second contractor achieves completion3
.
Despite noting that ‘much will turn on the
precise wording of the liquidated damages
clause in question’, it is clear from his
judgment that Sir Rupert doubted the
approaches in 2) and 3).
Regarding approach 2) he stated: ‘If a
construction contract is abandoned or
terminated, the employer is in new territory
for which the liquidated damages clause may
not have made provision. Although accrued
rights must be protected, it may sometimes be
artificial and inconsistent with the parties’
agreement to categorise the employer’s losses
as £x per week up to a specified date and then
general damages thereafter. It may be more
logical and more consonant with the parties’
bargain to assess the employer’s total losses
flowing from the abandonment or
termination, applying the ordinary rules for
assessing damages for breach of contract.’
[110]
Sir Rupert expressed doubts about approach
3) on the grounds that the employer and
second contractor could control the period for
which liquidated damages run [108].
He referred to an early 20th century House of
Lords case, British Glanzstoff Manufacturing
Co Ltd v General Accident Fire & Life
Assurance Corp Ltd 1913 SC (HL) 1 as support
for approach 1). At paragraph 109 of the
Triple Point judgment, Sir Rupert stated: ‘I see
much force in the House of Lords’ reasoning in
Glanzstoff. In some cases, the wording of the
liquidated damages clause may be so close to
the wording in Glanzstoff that the House of
Lords’ decision is binding.’
The court found that PTT was entitled to
recover liquidated damages for the delay in
completion of two stages in Phase 1, as these
were completed prior to termination.
However, PTT was not entitled to recover
liquidated damages for any of the other
delays as Triple Point had not completed any
other sections of the work prior to
termination. Damages were instead at large
and to be assessed on ordinary principles.
Sentence 2 of Article 12.3 imposed an overall
cap on Triple Point’s liability and this
encompassed general damages for delay.
Discussion
Many practitioners have taken issue with Sir
Rupert’s judgment. Approach 2) was
described as orthodox for a reason, it being
upheld in both Hudson’s Building and
Engineering Contracts and Keating on
Construction Contracts4
.
Important questions have been raised
concerning the binding nature of Glanzstoff,
with both commentators and courts5
considering that it ought to be confined to the

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facts of the case. In Glanzstoff, liquidated
damages were claimed until the actual date of
completion by the second contractor and the
time for completion had not passed at the
date of the first contractor’s insolvency.
The crux of the distinction between approach
1) and approach 2) concerns the concept of
accrued rights, which is dealt with very briefly
by Sir Rupert in the Court of Appeal. At [110]
he states that ‘accrued rights must be
protected’ but without further comment.
Liquidated damages are pre-agreed so that
the parties have certainty in the measure of
loss. Employers benefit by not having to
establish and mitigate their loss at common
law and contractors benefit from knowing
their potential liability for delay. Therefore,
where termination occurs prior to completion
but, because of the wording of the clause,
entitlement to liquidated damages is
considered not to have accrued, there may be
additional consequences which the parties
may not have considered:
• If the contract contains an exclusive
remedies clause this may (if it survives
termination) prevent the employer
from relying on its common law right
to general damages which may be its
only remedy for delay in the absence
of liquidated damages.
• The liquidated damages may have
been calculated to include loss of
profit, the right to which may
otherwise be excluded under the
contract. An employer may find itself
unable to recover loss of profit with
general damages.
• Liquidated damages are often
deducted in interim payments. Some
contracts provide for the mandatory
deduction of liquidated damages as
they accrue otherwise entitlement is
lost. It would certainly be unattractive
for an employer to have to return
these liquidated damages to a
contractor, particularly if the
contractor has in the meantime
become insolvent.
• A cap on liquidated damages may
survive an unenforceable liquidated
damages clause if time becomes at
large due to employer prevention or
where the clause is a penalty6
. Would
it also survive to cap general damages
where liquidated damages have not
accrued because of termination prior
to completion?
• The contract may provide a right of
termination once a maximum sum for
liquidated damages has been
exceeded. What happens if the
contract is terminated for this reason,

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but before completion? Does the right
to termination itself fall away?
• The employer may be liable to a third
party for liquidated damages, for
example, under a power purchase
agreement. The employer may have
thought this liability was back-to-back
with its entitlement under the
contract to liquidated damages from
the contractor. This back-to-back
cover would fall away if the employer
had to prove general damages against
the contractor.
FIDIC 1999
At first blush, the wording of Sub-Clause 8.7
mimics the liquidated damages provision in
Triple Point: ‘…[the delay damages] shall be
paid for every day which shall elapse between
the relevant Time for Completion and the date
stated in the Taking Over Certificate.’ As the
senior courts have been clear that the literal
wording of the contract must prevail7
, it
would be wrong not to give due consideration
to the clear words of the sub-clause.
However, it is followed by the wording: ‘These
delay damages8
shall be the only damages
due from the Contractor for such default,
other than in the event of termination under
Sub-Clause 15.2 [Termination by Employer]
prior to completion of the Works.’
This clause can be read in two ways: 1) The
delay damages are the only damages due for
delay to completion, other than in the event
of termination, in which case the Employer
shall be entitled to delay damages before
termination and general damages for delay
afterwards; or 2) The delay damages are the
only damages due for delay to completion,
other than in the event of termination, in
which case the Employer shall be entitled to
general damages for delay only.
Such wording gives rise to ambiguity, in which
case, business common sense may prevail.
This is to be read against the provision in Sub-
Clause 15.2 that ‘The Employer’s election to
terminate the Contract shall not prejudice any
other rights of the Employer, under the
Contract or otherwise’.
Further, the operation of Sub-Clause 17.6
(exclusion for loss of use, profit and contract,
or other ‘indirect or consequential loss’)
would severely diminish any general damages
for delay. This cannot have been the intention
of the contracting parties.
Triple Point’s impact on the FIDIC 1999 Silver
Book was considered in the recent case of PBS
Energo AS v Bester Generacion UK Ltd and
others [2020] EWHC (TCC). The Contract in
question was an amended 1999 Silver Book,
but the findings of Mrs Justice Cockerill DBE

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on the impact of the liquidated damages
provisions are pertinent.
Mrs Justice Cockerill DBE noted that Triple
Point is under appeal and is authority ‘for the
proposition that when considering damages
for delay which are included in contracts it is
necessary to consider the drafting of the
contract carefully to assess whether the clause
allows that any Liquidated damages will
survive termination and particularly whether
they will survive termination in circumstances
where the contract is terminated with the
works incomplete.’ Notably, she does not
state that it is authority for Sir Rupert’s
Approach 1. [438]. Indeed, she stated that
Triple Point ‘makes clear that what is perhaps
the orthodoxy is that the clause applies until
the termination of the first contract – and also
that in deciding which of three outcomes (no
application, application up until termination,
and application beyond termination) is correct
in any given case will turn on the wording of
the clause in each case.’ [441].
Cockerill J held that the liquidated damages
clause in the instant case was different. This
was because there was a “First Spark
Discount” which was the Employer’s (here a
Main Contractor) only remedy for delay for a
period of time. If the Contractor’s argument
was correct and the claim was only available if
there was completion, the Employer would
have neither a contractual nor a common law
right to compensation in relation to that
period. [444]. This is relevant to the loss of
profit and exclusive remedies arguments
above.
The judge then referred to the concept of
accrued rights, referring to Clause 21.9 of the
Contract which stated that ‘save as otherwise
provided in this Contract (a) termination of
this Contract shall be without prejudice to any
accrued rights and obligations as at the date
of termination.’ This wording is similar to 1999
Silver Book Sub-Clause 15.2: ‘The Employer’s
election to terminate the Contract shall not
prejudice any other rights of the Employer,
under the contract or otherwise.’ [445]. She
said that Clause 21.9 ‘makes it plain that
termination operates without prejudice to
accrued rights or obligations.’ [446]. Although
Sub-Clause 15.2 does not make express
reference to ‘accrued rights’, nonetheless
Cockerill J’s interpretation is persuasive.
The judgment then turned to Clause 8.7 of the
Contract, which, although amended appears
to be substantively the same as the 1999
Silver Book Sub-Clause 8.7. Here Cockerill J
stated that the clause is ‘looking at the time
for completion, not the actual completion –
and is therefore significantly different to the
clause under consideration in Triple Point. It
would appear to give an accrued right from
the time at which the Works should have been
completed. As such this was an accrued right
under Clause 21.9 – which was therefore

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explicitly agreed to be unaffected by
termination.’ [448].
Further, Cockerill J stated that there was
nothing in Clause 15.7 which purported to
override an accrued right to delay damages
and that Bester acquired an additional right
under Clause 15.7. This provides a persuasive
argument for interpretation 1) of the second
paragraph of Sub-Clause 8.7 above.
FIDIC 2017
Sub-Clause 8.8 contains the same bookends
for the application of delay damages as in the
1999 editions, i.e. between the ‘Time for
Completion’ and the ‘Date of Completion of
the Works or Section’ and thus engages the
reasoning of Triple Point.
However, Sub-Clause 15.4(c) allows the
Employer to recover Delay Damages (now a
defined term) if the Works or a Section have
not been taken over and if the date of
termination occurs after the date
corresponding to the Time for Completion of
the Works or Section. The contract therefore
expressly provides for the recovery of delay
damages in the event of termination, up to
the date of termination, i.e. Sir Rupert’s
approach 2) or the ‘orthodox position’.
Sub-Clause 15.2.1(c) also gives the Employer a
ground for termination where the maximum
amount of Delay Damages (as stated in the
Contract Data) has been exceeded.
Conclusion
There is force in Sir Rupert’s literal reading of
the liquidated damages clause in Triple Point
and avoiding ‘adding oranges and apples’ as
the orthodox position prescribes.
However, the judgment of Mrs Justice
Cockerill DBE in PBS Energo v Bester indicates
judicial reluctance to follow Triple Point. Sir
Rupert’s judgment has substantial
ramifications for the construction industry.
Employers may be deprived of a remedy and
the convenience of not having to establish
loss on general common law principles.
Contractors may lose the comfort of a defined
risk.
Permission to appeal was granted by the
Supreme Court on 6 November 20199
: the
judgment is eagerly awaited, particularly in
light of the TCC decision to side-step Triple
Point.
1. British Glanzstoff Manufacturing Co. Ltd v General
Accident, Fire and Life Assurance Co. Ltd 1913 SC (HL) 1;
Chantall Investments Ltd v F.G. Minter Ltd 1976 SC 73;
Gibbs v Tomlinson (1992) 35 Con LR 86
2. Greenore Port Ltd v Technical & General Guarantee
Company Ltd [2006] EWHC (TCC); Shaw v MFP
Foundations and Pilings Ltd [2010] EWHC 1839 (TCC); LW
Infrastructure PTE Ltd v Lim Chan San Contractors PTE Ltd
[2011] SGHC 163; [2012] BLR 13; Bluewater Energy
Services BV v Mercon Steel Structures BV [2014] EWHC
2132 (TCC)
3. Hall and another v Van Der Heiden (No 2) [2010] EWHC 586
(TCC) and GPP Big Field LLP v Solar EPC Solutions SL (Formerly
Prosolia Siglio XXI) [2018] EWHC 2866 (Comm)

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4. Both have subsequently treated Triple Point with caution
(see [6-039] of Hudson 14th Ed. and [10-039] of the
Supplement to Keating 10th Ed.)
5. Cameron-Head v John Cameron & Company (1919) SC
6. See Hudson's Building and Engineering Contracts 14th Ed. [6-
028] and Keating on Construction Contracts 10th Ed. [10-036].
7. Arnold v Britton [2015] UKSC 36, Lord Neuberger at [17]:
‘the reliance placed in some cases on commercial common
sense and surrounding circumstances… should not be invoked
to undervalue the importance of the language of the
provision… the clearer the natural meaning the more difficult it
is to justify departing from it’.
8. ‘Delay damages’ is not defined.
9.https://www.supremecourt.uk/news/permission-to-
appeal.html
Kerry Higgins, Corbett & Co, International
Construction Lawyers Ltd
Office: +44 (0)20 8614 6200
kerry.higgins@corbett.co.uk
www.corbett.co.uk
KEY DIFFERENCES BETWEEN THE
NSW & ACT SECURITY OF PAYMENT
ACTS
This is a brief report on the main differences
Between
The NSW Building and Construction Industry
Security of Payment Act (the NSW Act)
and
The Building and Construction Industry
(Security of Payment) Act 2009 (the ACT Act)
1. OVERVIEW
The NSW Act and the ACT Act are similar
security of payment Acts, both based on the
‘East Coast Model’.
This report mainly focuses on the differences
between the two Acts and if they are
identical, no mention of the function is made.
Noting that the NSW Act was amended on 21
October 2019 and not all the differences in
the amendments are included such as s 17 A
of the NSW Act which now provides that
adjudication applications can be withdrawn.
2. DIFFERENCES BETWEEN THE ACTS
a. Service of the Adjudication Application

15 | P a g e
The main operational difference between the
Acts relates to the service of the adjudication
application on the respondent which is carried
out by:
The claimant pursuant to s 17(5) of the NSW
Act; and.
The Adjudicator pursuant to s 21(2) of the ACT
Act.
b. Endorsement of payment claim
Another significant difference between the
Acts is provided in relation to payment claims
having to ‘state’ that they were made under
the security of payment Act.
S 15(2)(c) of the ACT Act requires that
payment claims must ‘state’ that they are
made under Act.
Whereas under the NSW Act, payment claims
related to contracts entered into1:
Prior to 22 April 2014, were required to ‘state’
that the payment claim was made under the
Act.
Between 23 April 2014 and 20 October 2019
were not required to ‘state’ that they were
made under the Act (unless the construction
contract was connected with an exempt
residential construction contract).
After 20 October 2019 are required to ‘state’
that they were made under the Act.
c. Judicial Review
Acts is provided in s 43 of the ACT Act,
‘Judicial review of adjudication decision’ that
expressly entitles a party to appeal an
adjudication decision to the Supreme Court
on any question of law arising out of an
adjudicator’s decision where either party
consent, or with leave of the Supreme Court.
However, a Supreme Court must not grant
leave to appeal unless2:
It considers that the determination of the
question of law concerned could substantially
affect the rights of one or more parties to the
adjudication decision;
There has been a manifest error of law on the
face of the adjudication decision; or
There is strong evidence that the
determination of a question may be likely to
add substantially to the certainty of the law.
d. Determination of question of law by the
Supreme Court
Acts is provided in s 44 of the ACT Act,
‘Judicial review of adjudication decision’ that
provides that the Supreme Court may
determine a question of law arising from an
application made by any of the parties to an
adjudication decision with the consent of the:

16 | P a g e
Adjudicator who made the decision; or
Parties to the decision.
The Supreme Court must not consider a
question of law under s 44 (1) (a) of the ACT
Act, unless it is satisfied that:
The determination of the question might
produce substantial savings in costs to the
parties; and
The question of law is one in respect of which
leave to appeal would be likely to be granted
under s 43 (4).
e. Eligibility of Adjudicators
The ACT Act provides that adjudicators must:
Have successfully completed a relevant
training course3; and
Not be employed by or represent a building
and construction industry organisation, such
as HIA or MBA4.
The NSW Act does not have these express
provisions.
f. Slight variation on definitions
i. Construction work and related goods and
services
The NSW Act ‘defines’ ‘construction work’ and
lists some items of work5.
The ACT Act provides similar ‘meanings’ to
construction work, lists some items of work
and includes some examples6.
The NSW Act and the ACT Act identify
construction related goods and services is a
similar way7.
ii. The claimed amount
The ACT Act requires the claimant to ‘state’
the claimed amount8. While the NSW Act
requires the claimant to ‘indicate’ the claimed
amount9.
iii. The scheduled amount
The ACT Act requires the respondent to ‘state’
the scheduled amount10. While the NSW Act
requires the respondent to ‘indicate’ the
scheduled amount11.
g. Reference dates and submission of
payment claims
S 10 of the ACT Act provides that on and from
each ‘reference date’ a claimant is entitled to
a progress payment.
A reference date is the date stated in the
contract for the submission of a payment
claim or the last day of the named month in
which construction work was carried out and
the last day of each subsequent named
month12.

17 | P a g e
related to contracts entered into:
Prior to 21 October 2019 have the same
provisions as the ACT Act; and
After 21 October 2019, ‘reference dates’ have
been abolished and claimants are entitled to
submit payment claims13:
On the last day of the named month in which
construction work was carried out and the last
day of each subsequent named month;
If the contract provides for an earlier
submission than the last day of the month in
accordance with the contract; and
On and from the date of termination of the
contract.
h. Due date for payment
S 13 of the ACT Act provides that the due date
for payment of a progress claims is:
The day when the payment becomes payable
under the contract; or
If the contract does not set a day—10
business days after a payment claim is made.
related to contracts entered into:
Prior to 23 April 2014 have the same
provisions as the ACT Act;
Between 23 April 2014 and 20 October 2019:
When a claimant is a ‘Head Contractor’
working for a ‘Principal’14:
15 business days after a payment claim is
made; or:
An earlier date as provided in accordance with
the terms of the contract.
When a claimant is subcontractor15:
made; or
After 20 October 2019:
When a claimant is a ‘Head Contractor’
working for a ‘Principal16:
made; or
When a claimant is subcontractor17:
made; or
i. Timing of Submissions

18 | P a g e
i. Payment claims
The timing of the submission of payment
claims is identical in both Acts in that payment
claims can be made by the later of the period
indicated in the contract or within 12 months
of when the construction work was last
carried out18.
ii. Payment schedules
The timing of the submission of payment
schedules in response to the payment claim is
identical in both Acts in that payment
schedules are to be provided within 10
business days after the payment claim was
received19 or an earlier time if provided by
the construction contract.
iii. Adjudication applications
The timing of the submission of adjudication
applications in response to payment
schedules is identical in both Acts in that
payment schedules are to be provided 10
business days after the payment claim was
received20 or an earlier time if provided by
the construction contract.
applications when there is no payment
schedule provided in response to the payment
claim is similar in both Acts in that the
adjudication application must be made:
After the provision of a notice which allows
the respondent 5 business days to provide a
payment schedule21:
Under the NSW Act within 10 business days
after the 5-business day period to provide the
payment schedule has elapsed22:
Under the ACT Act the earlier of 10 business
days after:
the 5-business day period to provide the
payment schedule has elapsed23; or
When the payment schedule was received24.
Noting that the notice pursuant to s19(2) or
s17(2) must be served within 20 business days
of the due date for payment25 in both Acts.
applications where the scheduled amount has
not been paid by the due date for payment is
identical in both Acts in that the adjudication
application must be made within 20 business
days of the due date for payment26.
iv. Adjudication responses
The period for the respondent to provide an
adjudication response is different in that:
Under the NSW Act the adjudication response
is due the later of 5 business days after a copy
of the adjudication application was served on
the respondent or 2 business days after the

19 | P a g e
respondent is notified of the adjudicator’s
acceptance of the application27; while
Under the ACT Act the adjudication response
is due the later of 7 business days after a copy
of the adjudication application was served on
the respondent or 5 business days after the
respondent is notified of the adjudicator’s
acceptance of the application28.
Under the ACT Act, a copy of the adjudication
response must be provided to the claimant no
later than 2 business days after the response
is given to the adjudicator29.
While under the NSW Act, there is an
obligation to serve a copy of the adjudication
response on the claimant, however no period
for this is specified30.
v. Determinations (decisions)
Under the NSW Act adjudicators provide
‘determinations’31.
Whereas under the ACT Act, adjudicators
provide ‘decisions’32.
The period for the adjudicator to make their
determination (decision) is:
Under the NSW Act, for contracts entered
into:
Prior to 20 October 2019, 10 business days
after the adjudicator has accepted the
adjudication application33.
After 20 October 2019:
If the respondent is entitled to provide an
adjudication response, the earlier of 10
business days after when the adjudication
response:
Is received34; or
Should have been received35.
If the respondent is not entitled to provide an
adjudication response, 10 business days after
the parties receive a copy of the adjudicator’s
acceptance36.
Under the ACT Act:
If the respondent is entitled to provide an
adjudication response, the earlier of 10
business days after when the adjudication
response:
Is received37; or
Should have been received38.
If the respondent is not entitled to provide an
adjudication response, 10 business days after
the respondent receives a copy of the
adjudication application39.
Both Acts require the claimant and the
respondent to agree to additional time to
provide the determination (decision)40.
j. Service of notices

20 | P a g e
Both Acts allow for the service of notices
(documents) by personal delivery, post, or
email, noting that the ACT Act operates in
conjunction with the Legislation Act 2001
(ACT)41.
The NSW expressly allowed the service of
notices by facsimile up until 23 April 201442,
when the provision was removed.
Under the ACT Act, notices can be served by
facsimile43
3. CONCLUSION
From an adjudicator’s perspective, the ACT
Act and the NSW Act are quite similar with the
main difference being the requirement for the
adjudicator to serve the adjudication
application on the respondent.
1 NSW Act s13
2 Review of Security of Payment Laws:
Building Trust and Harmony December 2017
by John Murray (JM Review) page 42
3 ACT Act s20(1)(c)
4 ACT Act s20(2)(b)
5 NSW Act s5(1)
6 ACT Act s7(1)
7 ACT Act s8 and NSW Act s6
8 ACT Act s15(2)(b)
9 NSW Act s13(2)(b)
10 ACT Act s16(2)(b)
11 NSW Act s14(2)(b)
12 ACT Act s10(3)
13 NSW Act s13(1)
14 NSW Act s11(1A)
15 NSW Act s11(1B)
16 NSW Act s11(1A)
17 NSW Act s11(1B)
18 ACT Act s15(4) and NSW Act s13(4)
20 ACT Act s19(3)(a) and NSW Act s17(3)(a)
22 NSW Act s17(3)(e)
23 ACT Act s19(3)(d)(i)
24 ACT Act s19(3)(d)(ii)
26 ACT Act s19(3)(c) and NSW Act s17(3)(d)
27 NSW Act s20(1)
28 ACT Act s22(1)
29 ACT Act s22(5)

21 | P a g e
30 NSW Act s20(3)
31 NSW Act s22
32 ACT Act s24
33 NSW Act s21(3)(a)
34 NSW Act s21(3)(a)(i)
35 NSW Act s21(3)(a)(i)
36 NSW Act s21(3)(a)(ii)
37 ACT Act s23(3)(a)(i)
38 ACT Act s23(3)(a)(ii)
39 ACT Act s23(3)(b)
40 ACT Act s23 (3)(c) NSW Act s21(3)(b).
41 JM Report par 15.1
42 NSW Act s 31(1)(c)
43 The Legislation Act 2001 (ACT) s247(1)(c)
Robert Sundercombe, Senior Adjudicator,
Adjudicate Today
MOCK SUPREME COURT HEARING
OF THE S&T V GROVE APPEAL
The joint SCL / TECBAR mock Supreme Court
hearing of the S&T v Grove appeal was held
on the 21st January. The event was a
resounding success, with both sides’ counsel
expertly putting their case before Sir Vivian
Ramsey and the 240 delegates in attendance.
At the end the delegates were asked to vote
on the appeal, which was defined as follows:
The lower Courts declared that, in law, upon
payment by it to S&T of the sum stated as
due, Grove is entitled to commence an
adjudication (or other proceedings) to
establish the sum due to the Contractor in
respect of Interim Application No.22 together
with a claim for any consequential financial
adjustment that arises.
Should the appeal against the correctness of
that declaration be allowed?
For those that agree with S&T: Yes
For those that agree with Grove: No
The audience (comprising some 240 members
of the SCL and TECBAR ) were invited to vote
on who had won. By a slim majority of 5:4 in
favour, the Court of Appeal decision was
thought to have been correct.

22 | P a g e
TRANSFORM SCHOOLS (NORTH
LANARKSHIRE) LIMITED V BALFOUR
BEATTY CONSTRUCTION LIMITED
[2020] CSOH 19
Without prejudice correspondence
in adjudication
Lord Ericht held that the adjudicator in this
case for enforcement had correctly dealt with
the without prejudice documents put before
him and said that
‘The current case is far removed from the
scenario deplored by Akenhead J. The current
case was not a situation where the
adjudicator was improperly made aware of an
irrelevant and collateral “without prejudice”
offer to settle which he ought to put out of his
mind. In the current case the question of the
admissibility of the “without prejudice” letters
was one which the adjudicator had to decide
as one of the central issues in the
adjudication. The adjudicator was legally
qualified. It was the adjudicator himself who
identified admissibility as being a central
issue. The adjudicator gave both parties an
opportunity to make submissions on the
question. He considered their submissions and
the case law to which he was referred and
came to a reasoned decision on the question.
It cannot be said that the submission of the
letters to the adjudicator, or the way in which
he dealt with them, was in any way improper
or involved any breach of natural justice or
apparent bias.
In the English case of Ellis Building Contractors
Limited v Vincent Goldstein Akenhead J
considered the use of “without prejudice”
material in
adjudications:
“25. The improper deployment of ‘without
prejudice’ material in adjudication is
something which happens in adjudication as in
court although this Court has at least
anecdotally seen an increase in this behaviour
in adjudication. This often arises because
parties represent themselves or are
represented by consultants who are not
legally qualified and, perhaps, they do not
fully understand that truly ‘without prejudice’
communications are privileged and should not
be referred to in any legal or quasi-legal
proceedings, including adjudication. Whilst if
‘without prejudice’ communications surface in
a court, the judge being legally qualified and
experienced can usually put it out of his or her
mind, it is a more pernicious practice in
adjudication because most adjudicators are
not legally qualified and there will often be a
greater feeling of unease that the ‘without
prejudice’ material may have really influenced
the adjudicator. This Court can only strongly
discourage parties from deploying ‘without
prejudice’ communications in adjudication.”

23 | P a g e
[37] Akenhead J then went on to review the
authorities and came to the following
conclusion:
“29. One can draw the following conclusions
about the consequences and ramifications of
the improper submission of ‘without prejudice’
material before an adjudicator:
(a) Obviously, such material should not be put
before an adjudicator. Lawyers who do so
may face professional disciplinary action.
(b) Where an adjudicator decides a case
primarily upon the basis of wrongly received
‘without prejudice’ material, his or her
decision may well not be enforced.
(c) The test as to whether there is apparent
bias present is whether, on an objective
appraisal, the material facts give rise to a
legitimate fear that the adjudicator might not
have been impartial. The Court on any
enforcement proceedings should look at all
the facts which may support or undermine a
charge of bias, whether such facts were
known to the adjudicator or not.”
https://www.scotcourts.gov.uk/docs/default-
source/cos-general-docs/pdf-docs-for-
opinions/2020csoh19.pdf?sfvrsn=0
TCC JUDGEMENTS 2020 ENGLAND
AND WALES HIGH COURT
(TECHNOLOGY AND
CONSTRUCTION COURT) DECISIONS
January
• DBE Energy Ltd v Biogas Products Ltd
[2020] EWHC 401 (TCC) (17 January
2020)
• John Innes Foundation Earlham
Institute & Ors v Vertiv Infrastructure
Ltd [2020] EWHC 19 (TCC) (17 January
2020)
• MPB v LGK [2020] EWHC 90 (TCC) (23
January 2020)
• VVB M&E Group Ltd & Anor v Optilan
(UK) Ltd [2020] EWHC 4 (TCC) (07
January 2020)
February
• Blackpool Borough Council v
Volkerfitzpatrick Ltd and Range
Roofing and Cladding Ltd & Ors
[2020] EWHC 387 (TCC) (25 February
2020)

24 | P a g e
• Goldman & Ors v Zurich Insurance Plc
& Anor [2020] EWHC 192 (TCC) (05
February 2020)
• PBS Energo AS v Bester Generacion
UK Ltd & Anor [2020] EWHC 223
(TCC) (07 February 2020)
• Ryhurst Ltd v Whittington Health
NHS Trust [2020] EWHC 448 (TCC) (28
February 2020)
• Yuanda (UK) Company Ltd v
Multiplex Construction Europe Ltd &
Anor [2020] EWHC 468 (TCC) (28
February 2020)
March
• Jalla & Ors v Royal Dutch Shell Plc &
Ors [2020] EWHC 459 (TCC) (02
March 2020)
02/03/2020 Cambridge 6.00pm
“Carillion - What happened, and what can we
learn from it? A personal perspective on
construction projects”
Speaker: Jeremy Mutter
03/03/2020 Ireland 6.00pm
“Investor state disputes & construction law:
what do you need to know?”
Speakers: Norah Gallagher and Baptiste
Rigardeau
03/03/2020 London 6.30pm
“An ‘officer of the contract’? The delicate
position of the contract administrator”
Speaker: Professor Anthony Lavers

25 | P a g e
26/03/2020 Manchester 5.30 for 6.00pm
“Cladding Claims and Fire Safety Post
Grenfell” Speakers: Lynne McCafferty QC and
Daniel Churcher
07/04/2020 London 6.30pm
National Liberal Club event
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.
The Right Honourable Lord Justice Coulson
will be a keynote speaker at the Conference.
http://www.constructionlaw2020.com/scl20
Tuesday, 21 April 2020
Glasgow
Annual Case Law Update
DRBF CONFERENCES 2020
The DRBF International Conference takes
place from the 27 to 29 May 2020 at the
Radisson Blu Cape Town, South Africa.

26 | P a g e
FIDIC CONFERENCES 2020
FIDIC GAMA Conference 2020, Gaborone,
Botswana 19 April, 2020 - 08:30 to 21 April,
2020 - 19:30 http://www.fidicgama2020.com/
FIDIC INFRASTRUCTURE
CONFERENCE 2020
The next FIDIC Annual International
Infrastructure Conference will be in Geneva
on 13 September 2020 to 15 September 2020.
http://fidic.org/events/conferences/annual-
conference-eoi

27 | P a g e
UK ADJUDICATORS 2020
EDINBURGH ADJUDICATION &
ARBITRATION CONFERENCE
The 2020 conference takes place on the 6
March 2020 at the Royal Society of Edinburgh
at 25-26 George Street, Edinburgh. It is a full
day conference with lunch and refreshments
provided.
UKA Panel members can book a reduced-price
ticket through the Eventbrite booking
website:
https://www.eventbrite.com/e/2020-
edinburgh-adjudication-arbitration-
conference-tickets-81052019773?utm-
medium=discovery&utm-
campaign=social&utm-
content=attendeeshare&aff=escb&utm-
source=cp&utm-term=listing
UK ADJUDICATORS 2020 LONDON
ADJUDICATION & ARBITRATION
CONFERENCE
The 2020 conference takes place on the 20
August 2020 at the IET 2 Savoy Place, London
WC2R 0BL in the 450 capacity Kelvin Lecture
Theatre.
Sir Rupert Jackson has confirmed his
attendance as one of our guests of honour.

28 | P a g e
Speakers, chairs and hosts include:
Louise Woods
Marcus Teverner QC
James Doe
Andrew Anglionby
Sean Gibbs
David Sawtell
Matthew Finn
Anthony Albertini
Iain Aitchison
Julie Forsyth
Murray Armes
Virginie Colaiuta
Chris Dyson
Victoria Tyson
Dan Miles
Peter Collie
Dean Sayers
UKA Panel members can book a reduced-price
ticket through the Eventbrite booking
website. You will be mailed a link for your
own personal use.

UKA March 2020 newsletter

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UKA March 2020 newsletter