A Practical Guide to Construction Adjudication

Table of Contents:
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 law in 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 and Wales 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: Peter Wood 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: Dermot McEvoy 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: Tómas 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 subject matter 584 Appendix 9 – Alphabetical case index 678 Index 709

About the Author :
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.

Review :
"If one had to name a single outstanding feature of the text, it would be its structure as a formidable practice tool. I share the sentiments of The Honourable Mr Justice Edwards-Stuart, expressed in the book's foreword, that it sets out not to rival existing works (such as the leading adjudication text by Mr Justice Coulson), but to complement them. This book does not dwell in the dominion of academic debate. It is instead structured around the questions that inevitably arise in the conduct of every-day construction business and, of course, when payment disputes arise. Its answers to these questions are concise, accurate, and commercially acute. It is well-suited for any adviser or decision-maker in the construction industry, to whom I would recommend this book strongly." Professor Doug S Jones AO, International Construction Law Review, Part 3 July 2016   "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