Construction, Property & Real Estate (Case Law Review, Issue 7, 2007)

ADJUDICATION

Excess of jurisdiction

Quietfield v Vascroft - a case of excess (jurisdiction)? by Kevin Barratt, Construction Law Journal 2007 Vol.23 No.5 p.356

The article considers the propositions that the judgment of Jackson J, subsequently upheld by the Court of Appeal in Quietfield v Vascroft (Matthew Holt and Abdul Jinadu), was right, but that Quietfield's concession on natural justice was wrong, and that the adjudicator's error resulted in an excess of jurisdiction. The article also comments at some length on Jackson J's 'five propositions' about adjudication in Carillion Construction v Devonport Royal Dockyard (Stephen Furst QC and Louise Randall). The conclusion is that "caution should be exercised before relying upon the Quietfield judgment in relation to the natural justice point Ultimately, Quietfield should be remembered, and cited, for its clear statement on the approach to multiple adjudications concerning extensions of time and liquidated damages, but not otherwise."

Adjudication in Australia

Adjudication Down Under: a survey of the adjudication legislation in Australia by Robert Fenwick Elliott, Fenwick Elliott Grace, Adelaide and Jeremy Coggins, University of South Australia, Construction Law Journal 2007 Vol.23 No.5 p.364

The regular Construction Act Review feature by Peter Sheridan and Dominic Helps of Shadbolts consists of the Fenwick Elliott/Coggins paper which considers the impact of adjudication in Australia, specifically drawing on Australian experience. It reviews case law and gives some statistical data on volume of adjudication activity.

See Domsalla v Dyason under Keating Chambers Reported Cases on unfairness of withholding and adjudication provisions in a JCT Minor Works contract.

See Mott MacDonald v London & Regional Properties under Keating Chambers Reported Cases on whether a letter of intent was a contract in writing under HGCR Act s.107 and on adjudicators' liens.

See HG Construction v Ashwell Homes under Keating Chambers Reported cases on the binding effect of an earlier adjudication on a dispute referred to a subsequent adjudication.

HGCR Act in the Lords

Lords split on Construction Act case by Shona Frame, MacRoberts Construction Law Vol.18 Issue 6 July 2007 p.14

The article reports on and analyses the landmark decision of the House of Lords on the payment provisions of the HGCR Act; the first to be made. The case considers the interaction between the statute and the termination provisions of the (JCT 98) contract. The article emphasises the split in opinion between the Law Lords which may leave scope for further movement in the law.

See also latest report of the case at [2007] BLR 257

See Norwest Holst v Danieli Davy Distington under Keating Chambers Reported Cases on whether design and construction of steel pit facilities comprised construction operations within s.105(1) HGCR Act.

Wrong appointing body

Lead Technical Services Ltd v CMS Medical Ltd [2007] BLR 251 and [2007] BLM Vol.24 Number 6 CA

The Court of Appeal allowed an appeal against a grant of summary judgment of an adjudicator's decision, on the ground that the defendant had a real prospect of establishing a lack of jurisdiction in making the decision. The Deed of Appointment provided for the application of the TeCSA Rules, but the adjudicator was appointed by ICE, rather than TeCSA. It was thus eminently arguable that the adjudicator was appointed by the wrong body and so lacked jurisdiction. Accordingly, summary judgment should not have been granted.

Extension of time-limit by adjudicator

AC Yule & Son v Speedwell Roofing & Cladding Ltd [2007] All ER (D) 100 TCC

The court held that there is a clear obligation on the parties to an adjudication to respond plainly and promptly to an adjudicator's request for an extension of the 28 day time-limit. If a party does not respond, there would be a strong case for saying they have agreed to the request. Here the defendant was not only silent, but had sent large quantities of further information very late, and would be taken to have agreed to the request. Any objection to a request for an extension must be made clear.

JCT Minor Works

ART Consultancy Ltd v Nevada Training Ltd [2007] All ER (D) 157 TCC

The claimant contractor was engaged by the defendant client to design works and then build them. Because the JCT Minor Works Contract had been used, this was a written contract and subject to the HGCR Act adjudication provisions. However, unlike other JCT contracts, the MW is expressly limited to construction. The design work was therefore not covered by the written contract. The adjudicator had been correct to strip out of the claim any element relating to design, since he would have no jurisdiction there. Accordingly, the award would be enforced and summary judgment granted to the claimant.

Construction Law August/ September 2007 Vol. 18 Issue 7 contains the following:

HGCR Act in the Lords: the broad view

by Simon Hargreaves, Keating Chambers

Spit it out, or perhaps not

by Paul Newman, 3 Paper Buildings

(on jurisdictional challenges)

A fertile area for lawyers

by Michael Draper, Shadbolt & Co

See DGT Steel and Cladding v Cubitt Building & Interiors under Keating Chambers Reported Cases on application for stay of court proceedings pending adjudication.

See Pierce Design International v Johnston under Keating Chambers Reported Cases on failure to make payment without withholding notice, following Melville Dundas v George Wimpey.

See Mast Electrical Services v Kendall Cross under Keating Chambers Reported Cases on the inadequacy of quotations and correspondence to constitute a written contract under s.107 HGCR Act.

See RC Pillar v The Camber under Keating Chambers Reported Cases on parties' agreement to increase the ad hoc jurisdiction of the adjudicator.

ARBITRATION AND DISPUTE RESOLUTION

Expert determination

Expert determination - use with caution by Michael Draper, Shadbolt & Co, Construction Law Vol.18 Issue 6 July 2007 p.32

This article, in the regular ADR slot in the journal, outlines the features of expert determination and differentiates it from adjudication and arbitration. Nikko Hotels v MEPC, which is much cited in adjudication cases such as Bouygues v Dahl Jenson (Stephen Furst QC), is the only authority referred to.

Exclusion of right to s.69 challenge

Essex County Council v Premier Recycling Ltd [2007] Vol. 24 No. 7 July 2007 TCC

In the context of a contract for management of amenity and recycling centres, the use of the words 'final and binding' in an arbitration agreement was not sufficient to exclude the possibility of a challenge under s.69 Arbitration Act 1996. Clear words would be necessary to do so, indicating an intention by the parties to exclude a process of challenge in the courts; the words did not clearly show this intention, because of the context.

Arbitrator's own expertise

JD Wetherspoon plc v Jay Mar Estates [2007] BLR 285 TCC

The claimant tenants sought to challenge an award on a rent review, claiming that the arbitrator was in error in disregarding submissions and relying on his own methods of assessment without giving the parties opportunities for further comment on them. The court held that the arbitrator was entitled to trust his own professional expertise and that nothing in his approach could be said to constitute serious irregularity within s.68 of the Arbitration Act 1996.

Reasons in expert determination

Halifax Life Ltd v Equitable Life Assurance Society Construction Law Journal [2007] Vol. 23 No.5 Commercial Court

An umpire, deciding on a sum payable as a premium on reassurance, was agreed to be undertaking an expert determination. The court held that it had power to order an expert to give reasons or further reasons for his decision when providing an expert determination.

Grounds for stay of arbitration

J. Jarvis & Sons Ltd v Blue Circle Dartford Estates Ltd [2007] All ER (D) 96 TCC

The claimant main contractor sought an injunction to stay an arbitration commenced by the defendant client in respect of a dispute over construction of a design and build contract for a warehouse. The claimant wanted to pursue litigation. The court, refusing the injunction, noted that, since the 1996 Arbitration...