A Practical Guide to Construction Adjudication
1. Edition December 2015
766 Pages, Softcover
Wiley & Sons Ltd
ISBN:
978-1-118-71795-0
John Wiley & Sons
In the United Kingdom, adjudication is available as a right for parties to a construction contract, following the enactment of the Housing Grants Construction and Regeneration Act 1996. In general, within a comparatively short period of time, parties in dispute will have a decision from an adjudicator, which, except in limited circumstances, the courts will enforce. Adjudication has become the number one method of dispute resolution in the construction industry.
The short timescale means that a party needs to know what to do, when to do it and be able to check that the other party and the adjudicator are following the right steps. A Practical Guide to Construction Adjudication gives parties the necessary information to achieve this. It provides a straightforward overview of the process and procedure of adjudication by reference to legislation and case law, augmented with practical guidance including suggestions on what to do or not to do, drafting tips and checklists. Separate chapters for Scotland and Northern Ireland identify and explain the differences in procedure and judicial interpretation between those jurisdictions and England and Wales, and further detailed explanations of the adjudication regimes in Australia, Ireland, Malaysia, New Zealand and Singapore are included. Each of the chapters on jurisdictions outside England and Wales has been written by senior experts in those jurisdictions to ensure the content is accurate and insightful.
There are a range of helpful appendices including a bank of model form adjudication documents and tabulated detailed comparisons of the Scheme for Construction Contracts, the other major adjudication rules, the major adjudicator nominating bodies and the UK and international regimes. Readers will particularly appreciate the most comprehensive index of adjudication cases available, sorted into 260 subject headings providing immediate access to all the reported cases on any adjudication topic.
Foreword v
Acknowledgements vii
Part I The United Kingdom
1 Introduction 3
1.1 Overview 3
1.2 Background to statutory adjudication in the UK 4
1.3 Statutory adjudication regimes 5
1.4 Use of case lawin this part 6
2 Adjudication in a nutshell 9
3 Deciding to adjudicate 13
3.1 Overview 13
3.2 Do I have a claim? 14
3.3 Is it worth it? 15
3.4 Is adjudication the right forum? 18
3.5 Other forms of 'rapid' dispute resolution 24
3.6 Adjudication on behalf of, or against, an insolvent party 30
3.7 Who to involve 40
3.8 Checklist: considering whether or not to adjudicate 42
4 Statutory adjudication 43
4.1 Overview 43
4.2 Old or new act 44
4.3 Existence and terms of a contract 44
4.4 Construction contract 49
4.5 Construction operations 55
4.6 Excluded construction operations 58
4.7 Excluded agreements 62
4.8 Contract in writing 66
4.9 Checklist: What form of adjudication am I subject to? 74
5 Contractual and ad hoc adjudication 75
5.1 Overview 75
5.2 Contractual adjudication 75
5.3 Ad hoc adjudication 79
6 Adjudication procedure 83
6.1 Overview 83
6.2 Scheme 84
6.3 Contractual procedures 88
6.4 Checklist:What adjudication procedure am I subject to? 96
7 Preconditions and restrictions to statutory adjudication 97
7.1 Overview 97
7.2 Is there a dispute? 98
7.3 More than one dispute 108
7.4 Substantially the same dispute (Scheme p. 9) 111
7.5 Does the dispute arise 'under' the contract (Act s. 108(1))? 115
7.6 More than one contract 117
7.7 Commencing an adjudication 'at any time' 119
8 Adjudication strategy 123
8.1 Overview 123
8.2 Commencing the adjudication process 123
8.3 More than one adjudication 125
8.4 Choosing the dispute to refer 126
8.5 Deploying arguments 139
8.6 Assessing the other party's willingness and ability to pay 141
8.7 Removing procedural uncertainty 142
9 Initiating the adjudication 144
9.1 Overview 144
9.2 A precis on jurisdiction and natural justice 145
9.3 Notice of adjudication 146
9.4 Checklist: Before serving the notice of adjudication - referring party 151
9.5 Checklist: On receiving the notice of adjudication - responding party 151
9.6 Appointing the adjudicator 152
9.7 Checklist: Appointing the adjudicator - referring party 171
9.8 Checklist: Appointing the adjudicator - responding party 171
9.9 Checklist: Accepting the appointment - adjudicator 172
10 The adjudication 173
10.1 Overview 173
10.2 Referral notice 174
10.3 Response 181
10.4 Reply, rejoinder and sur-rejoinder 184
10.5 Meetings 186
10.6 Other matters 188
10.7 Adjudicator's powers and duties 201
10.8 Checklist: Managing the adjudication - the adjudicator 212
11 The decision 214
11.1 Overview 214
11.2 What is the adjudicator required to do? 214
11.3 On receiving the decision 218
11.4 Timing 219
11.5 Effect and compliance 223
12 Post decision 227
12.1 Overview 227
12.2 Adjudicator's costs 228
12.3 Parties' costs 233
12.4 Apportioning costs 237
12.5 Correcting errors in the decision 239
12.6 Setting off against the decision 241
13 Enforcement: options and procedure 249
13.1 Overview 249
13.2 Key statements of principle and the court's policy 249
13.3 TCC summary enforcement procedure 252
13.4 Other procedures for enforcement 276
13.5 Complying with an order of the court 280
13.6 Checklist: Avoiding the consequences of an adjudicator's decision 284
14 Enforcement: insolvency, stay and severability 285
14.1 Overview 285
14.2 Insolvency avoids summary judgment 286
14.3 Stay of execution 290
15 Final determination 304
15.1 Overview 304
15.2 Finalising the adjudicator's decision 305
15.3 Adjudication and other proceedings 307
15.4 Commencement, onus of proof and costs 312
16 The adjudicator's jurisdiction 319
16.1 Overview 319
16.2 When to think about jurisdiction 319
16.3 Options when a jurisdictional issue arises 320
16.4 Losing the right to challenge the adjudicator's jurisdiction 331
16.5 Threshold jurisdiction challenges 338
16.6 Process jurisdiction challenges 342
16.7 Decision based jurisdiction challenges 349
16.8 Checklist: Jurisdiction - the parties 360
16.9 Checklist: Jurisdiction - the adjudicator 361
17 Natural justice 362
17.1 Overview 362
17.2 When to think about natural justice 364
17.3 Options when a natural justice point arises 364
17.4 Bias and apparent bias 366
17.5 Procedural fairness 378
17.6 Checklist: Natural justice - the parties and the adjudicator 399
18 Further grounds for resisting enforcement 400
18.1 Overview 400
18.2 Fraud or deceit 401
18.3 Duress 402
18.4 UTCCR 403
18.5 Human Rights Act 404
19 Scotland: Tony Jones 406
19.1 Overview 406
19.2 Differences between the Scheme and the Scottish Scheme 408
19.3 Enforcement of an adjudicator's award 411
19.4 Issues of divergence between England andWales and Scotland 418
20 Northern Ireland: Michael Humphreys QC 427
20.1 Overview 427
20.2 Enforcement of adjudicators' awards 429
20.3 An alternative remedy - declaratory relief 434
20.4 Judicial consideration 435
Part II International
21 Introduction 443
22 Australia: PeterWood and Phillip Greenham 446
22.1 Overview 446
22.2 Requirements for commencing an adjudication 449
22.3 Adjudication process 453
22.4 Determination, effect and costs 456
22.5 Enforcement 458
23 Ireland: DermotMcEvoy 461
23.1 Overview 461
23.2 Requirements for commencing an adjudication 462
23.3 Adjudication process 464
23.4 Determination, effect and costs 469
23.5 Enforcement 470
23.6 Conclusion 471
24 Malaysia: Philip Koh 473
24.1 Overview 473
24.2 Requirements for commencing the adjudication process 474
24.3 Adjudication process 478
24.4 Administration of the adjudication 481
24.5 Determination, effect and costs 482
24.6 Enforcement 484
24.7 Conclusion 485
25 New Zealand: T´omas Kennedy-Grant QC 487
25.1 Overview 487
25.2 Requirements for commencing an adjudication 488
25.3 Adjudication process 490
25.4 Determination, effect and costs 493
25.5 Enforcement 496
25.6 Proposed amendments 500
26 Singapore: Steven Cannon 501
26.1 Overview 501
26.2 Requirements for commencing an adjudication 502
26.3 Payment regime 504
26.4 Adjudication process 508
26.5 Determination, effect and costs 515
26.6 Enforcement 518
26.7 Conclusion 520
Appendices
Appendix 1 -The 1996 Act as amended 523
Appendix 2 -The 1998 Scheme as amended 530
Appendix 3 - Glossary (UK only) 538
Appendix 4 -Model forms 542
Appendix 5 - Summary comparison of UK adjudication rules 561
Appendix 6 - Details of UK adjudicator nominating bodies 570
Appendix 7 - Comparison of UK and international statutory regimes 578
Appendix 8 - Case index: by subjectmatter 584
Appendix 9 - Alphabetical case index 678
Index 709
Acknowledgements vii
Part I The United Kingdom
1 Introduction 3
1.1 Overview 3
1.2 Background to statutory adjudication in the UK 4
1.3 Statutory adjudication regimes 5
1.4 Use of case lawin this part 6
2 Adjudication in a nutshell 9
3 Deciding to adjudicate 13
3.1 Overview 13
3.2 Do I have a claim? 14
3.3 Is it worth it? 15
3.4 Is adjudication the right forum? 18
3.5 Other forms of 'rapid' dispute resolution 24
3.6 Adjudication on behalf of, or against, an insolvent party 30
3.7 Who to involve 40
3.8 Checklist: considering whether or not to adjudicate 42
4 Statutory adjudication 43
4.1 Overview 43
4.2 Old or new act 44
4.3 Existence and terms of a contract 44
4.4 Construction contract 49
4.5 Construction operations 55
4.6 Excluded construction operations 58
4.7 Excluded agreements 62
4.8 Contract in writing 66
4.9 Checklist: What form of adjudication am I subject to? 74
5 Contractual and ad hoc adjudication 75
5.1 Overview 75
5.2 Contractual adjudication 75
5.3 Ad hoc adjudication 79
6 Adjudication procedure 83
6.1 Overview 83
6.2 Scheme 84
6.3 Contractual procedures 88
6.4 Checklist:What adjudication procedure am I subject to? 96
7 Preconditions and restrictions to statutory adjudication 97
7.1 Overview 97
7.2 Is there a dispute? 98
7.3 More than one dispute 108
7.4 Substantially the same dispute (Scheme p. 9) 111
7.5 Does the dispute arise 'under' the contract (Act s. 108(1))? 115
7.6 More than one contract 117
7.7 Commencing an adjudication 'at any time' 119
8 Adjudication strategy 123
8.1 Overview 123
8.2 Commencing the adjudication process 123
8.3 More than one adjudication 125
8.4 Choosing the dispute to refer 126
8.5 Deploying arguments 139
8.6 Assessing the other party's willingness and ability to pay 141
8.7 Removing procedural uncertainty 142
9 Initiating the adjudication 144
9.1 Overview 144
9.2 A precis on jurisdiction and natural justice 145
9.3 Notice of adjudication 146
9.4 Checklist: Before serving the notice of adjudication - referring party 151
9.5 Checklist: On receiving the notice of adjudication - responding party 151
9.6 Appointing the adjudicator 152
9.7 Checklist: Appointing the adjudicator - referring party 171
9.8 Checklist: Appointing the adjudicator - responding party 171
9.9 Checklist: Accepting the appointment - adjudicator 172
10 The adjudication 173
10.1 Overview 173
10.2 Referral notice 174
10.3 Response 181
10.4 Reply, rejoinder and sur-rejoinder 184
10.5 Meetings 186
10.6 Other matters 188
10.7 Adjudicator's powers and duties 201
10.8 Checklist: Managing the adjudication - the adjudicator 212
11 The decision 214
11.1 Overview 214
11.2 What is the adjudicator required to do? 214
11.3 On receiving the decision 218
11.4 Timing 219
11.5 Effect and compliance 223
12 Post decision 227
12.1 Overview 227
12.2 Adjudicator's costs 228
12.3 Parties' costs 233
12.4 Apportioning costs 237
12.5 Correcting errors in the decision 239
12.6 Setting off against the decision 241
13 Enforcement: options and procedure 249
13.1 Overview 249
13.2 Key statements of principle and the court's policy 249
13.3 TCC summary enforcement procedure 252
13.4 Other procedures for enforcement 276
13.5 Complying with an order of the court 280
13.6 Checklist: Avoiding the consequences of an adjudicator's decision 284
14 Enforcement: insolvency, stay and severability 285
14.1 Overview 285
14.2 Insolvency avoids summary judgment 286
14.3 Stay of execution 290
15 Final determination 304
15.1 Overview 304
15.2 Finalising the adjudicator's decision 305
15.3 Adjudication and other proceedings 307
15.4 Commencement, onus of proof and costs 312
16 The adjudicator's jurisdiction 319
16.1 Overview 319
16.2 When to think about jurisdiction 319
16.3 Options when a jurisdictional issue arises 320
16.4 Losing the right to challenge the adjudicator's jurisdiction 331
16.5 Threshold jurisdiction challenges 338
16.6 Process jurisdiction challenges 342
16.7 Decision based jurisdiction challenges 349
16.8 Checklist: Jurisdiction - the parties 360
16.9 Checklist: Jurisdiction - the adjudicator 361
17 Natural justice 362
17.1 Overview 362
17.2 When to think about natural justice 364
17.3 Options when a natural justice point arises 364
17.4 Bias and apparent bias 366
17.5 Procedural fairness 378
17.6 Checklist: Natural justice - the parties and the adjudicator 399
18 Further grounds for resisting enforcement 400
18.1 Overview 400
18.2 Fraud or deceit 401
18.3 Duress 402
18.4 UTCCR 403
18.5 Human Rights Act 404
19 Scotland: Tony Jones 406
19.1 Overview 406
19.2 Differences between the Scheme and the Scottish Scheme 408
19.3 Enforcement of an adjudicator's award 411
19.4 Issues of divergence between England andWales and Scotland 418
20 Northern Ireland: Michael Humphreys QC 427
20.1 Overview 427
20.2 Enforcement of adjudicators' awards 429
20.3 An alternative remedy - declaratory relief 434
20.4 Judicial consideration 435
Part II International
21 Introduction 443
22 Australia: PeterWood and Phillip Greenham 446
22.1 Overview 446
22.2 Requirements for commencing an adjudication 449
22.3 Adjudication process 453
22.4 Determination, effect and costs 456
22.5 Enforcement 458
23 Ireland: DermotMcEvoy 461
23.1 Overview 461
23.2 Requirements for commencing an adjudication 462
23.3 Adjudication process 464
23.4 Determination, effect and costs 469
23.5 Enforcement 470
23.6 Conclusion 471
24 Malaysia: Philip Koh 473
24.1 Overview 473
24.2 Requirements for commencing the adjudication process 474
24.3 Adjudication process 478
24.4 Administration of the adjudication 481
24.5 Determination, effect and costs 482
24.6 Enforcement 484
24.7 Conclusion 485
25 New Zealand: T´omas Kennedy-Grant QC 487
25.1 Overview 487
25.2 Requirements for commencing an adjudication 488
25.3 Adjudication process 490
25.4 Determination, effect and costs 493
25.5 Enforcement 496
25.6 Proposed amendments 500
26 Singapore: Steven Cannon 501
26.1 Overview 501
26.2 Requirements for commencing an adjudication 502
26.3 Payment regime 504
26.4 Adjudication process 508
26.5 Determination, effect and costs 515
26.6 Enforcement 518
26.7 Conclusion 520
Appendices
Appendix 1 -The 1996 Act as amended 523
Appendix 2 -The 1998 Scheme as amended 530
Appendix 3 - Glossary (UK only) 538
Appendix 4 -Model forms 542
Appendix 5 - Summary comparison of UK adjudication rules 561
Appendix 6 - Details of UK adjudicator nominating bodies 570
Appendix 7 - Comparison of UK and international statutory regimes 578
Appendix 8 - Case index: by subjectmatter 584
Appendix 9 - Alphabetical case index 678
Index 709
"The name of Pickavance is a well-known one in dispute circles, and James is a chip off the old block. It seems a fair bet that through this very practical but at the same time scholarly work he will become as well known and regarded as his father and uncle. The book could perfectly well serve as a key resource for lawyers, construction claims consultants and adjudicators. It will certainly be a book I turn to for guidance on knotty adjudication issues."
Jeremy Winter, FCInstCES, Adjudicator, Civil Engineering Surveyor 05.16
From the foreword
Part 1 of this book, whilst fully supported by references to decided cases, is very much directed towards the practitioner who has to advise his or her client on a construction dispute and then conduct or defend proceedings brought by way of adjudication. To this end it provides a clear route map together with helpful checklists at the conclusion of each chapter. It is this different approach that I think readers will find so helpful. The guidance in relation to insolvency and administration is particularly valuable. As an added benefit, there is Part 2 - which deals with adjudication in other jurisdictions. I know of no other similarly comprehensive guide and it is a fascinating and illuminating source of reference. This book does not set out to be a rival to existing works but to complement them. That is a role that I have no doubt that readers will find that it amply fulfils.
The Hon Mr Justice Edwards-Stuart
Solicitor James Pickavance has really come up to snuff. He has gone for a practical guide to adjudication. Pickavance is a partner at Eversheds: The firm can be proud of the book. He tells the reader what to do and when and how and why. ...yes it is a must for the representative lawyers/consultants ... yes for the adjudicators ... yes especially for you contractors. Pickavance's book style is practical too. I do like his "In a Nutshell" paragraphs.
Tony Bingham, Building Magazine, 04.12.15
This book certainly lives up to its name - the reader is navigated through adjudication with each chapter starting with an overview of the subject matter which is then addressed by individual topics initially caught by an 'in a nutshell' paragraph followed by excellent discussion with clear signposting to the relevant case law. It is evident throughout that the focus of this text is on practicality, a key theme which flows throughout the entirety of the book, offering sound advice to parties at all stages of the process - including before and after the adjudication itself. Finally the book provides a comparison of UK and international statutory regimes - something no one else has published to date as far as I am aware - which ensures the subject of statutory adjudication is well and truly covered in one book! The author is to be congratulated on the practical and strategic guidance offered to those involved in the process at various levels- this book certainly delivers - it will prove a very useful tool.
Janey L. Milligan, Construction Law
... the author is to be commended for producing an interesting, informative and a very detailed analysis of the Adjudication process. There is a comprehensive analysis of various cases, and the author has provided an interesting case index by subject matter, which is extremely helpful I have no doubt that ... this extensive publication will be of interest to future Adjudicators and party representatives, and it is crammed with helpful commentaries on the practical aspects of Construction Adjudication. It is without doubt, in my view, that this textbook will be an essential addition to the library of the practitioner, and is a very useful reference point, and is also very reasonably priced as well.
Len Bunton, Chartered Institute of Arbitrators
The author has produced a clear and sensible guide to the subject. The guide is thorough and well-researched. The author's discussions are generally lucid and helpful and he has wisely avoided the temptation to go into too much academic debate. I particularly liked his use of 'nutshell' introductions and shaded 'checklists' at the end of lengthier sections. I warmly recommend this book to the construction industry, adjudicators and lawyers alike. Mr Pickavance clearly has a wise head on his relatively young shoulders and he and his publisher deserve to be congratulated on this achievement: kudos!
Nick Lane, Construction News
Jeremy Winter, FCInstCES, Adjudicator, Civil Engineering Surveyor 05.16
From the foreword
Part 1 of this book, whilst fully supported by references to decided cases, is very much directed towards the practitioner who has to advise his or her client on a construction dispute and then conduct or defend proceedings brought by way of adjudication. To this end it provides a clear route map together with helpful checklists at the conclusion of each chapter. It is this different approach that I think readers will find so helpful. The guidance in relation to insolvency and administration is particularly valuable. As an added benefit, there is Part 2 - which deals with adjudication in other jurisdictions. I know of no other similarly comprehensive guide and it is a fascinating and illuminating source of reference. This book does not set out to be a rival to existing works but to complement them. That is a role that I have no doubt that readers will find that it amply fulfils.
The Hon Mr Justice Edwards-Stuart
Solicitor James Pickavance has really come up to snuff. He has gone for a practical guide to adjudication. Pickavance is a partner at Eversheds: The firm can be proud of the book. He tells the reader what to do and when and how and why. ...yes it is a must for the representative lawyers/consultants ... yes for the adjudicators ... yes especially for you contractors. Pickavance's book style is practical too. I do like his "In a Nutshell" paragraphs.
Tony Bingham, Building Magazine, 04.12.15
This book certainly lives up to its name - the reader is navigated through adjudication with each chapter starting with an overview of the subject matter which is then addressed by individual topics initially caught by an 'in a nutshell' paragraph followed by excellent discussion with clear signposting to the relevant case law. It is evident throughout that the focus of this text is on practicality, a key theme which flows throughout the entirety of the book, offering sound advice to parties at all stages of the process - including before and after the adjudication itself. Finally the book provides a comparison of UK and international statutory regimes - something no one else has published to date as far as I am aware - which ensures the subject of statutory adjudication is well and truly covered in one book! The author is to be congratulated on the practical and strategic guidance offered to those involved in the process at various levels- this book certainly delivers - it will prove a very useful tool.
Janey L. Milligan, Construction Law
... the author is to be commended for producing an interesting, informative and a very detailed analysis of the Adjudication process. There is a comprehensive analysis of various cases, and the author has provided an interesting case index by subject matter, which is extremely helpful I have no doubt that ... this extensive publication will be of interest to future Adjudicators and party representatives, and it is crammed with helpful commentaries on the practical aspects of Construction Adjudication. It is without doubt, in my view, that this textbook will be an essential addition to the library of the practitioner, and is a very useful reference point, and is also very reasonably priced as well.
Len Bunton, Chartered Institute of Arbitrators
The author has produced a clear and sensible guide to the subject. The guide is thorough and well-researched. The author's discussions are generally lucid and helpful and he has wisely avoided the temptation to go into too much academic debate. I particularly liked his use of 'nutshell' introductions and shaded 'checklists' at the end of lengthier sections. I warmly recommend this book to the construction industry, adjudicators and lawyers alike. Mr Pickavance clearly has a wise head on his relatively young shoulders and he and his publisher deserve to be congratulated on this achievement: kudos!
Nick Lane, Construction News
James Pickavance is a partner in the construction and engineering practice of Eversheds LLP, specialising in dispute resolution. He has experience of all forms of dispute resolution, in particular contractual and statutory adjudication, domestic and international arbitration, expert determination, mediation and litigation, and advises public bodies, governments, international corporations and private clients on domestic and international, single or multi-jurisdictional disputes across a range of industry sectors in over 20 jurisdictions.
