UK: Adjudicator has jurisdiction despite concurrent referrals and late service of referral notice

The UK High Court has ruled that an adjudicator had jurisdiction to make two decisions despite the fact that the responding party (Newlon) did not receive the referrals when they were served on the adjudicator. The court also rejected Newlon’s argument that the adjudicator could not be referred two disputes concurrently pursuant to section 108(1) of the Construction Act 1996: Wilmott Dixon v Newlon [2013] EWHC 798 TCC 9 April 2013

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UK High Court reviews whether a company can be wound up for failure to comply with adjudication award

In a judgment only recently published via the Building Law Reports,  the High Court has ruled that a winding up procedure applicable to companies should not be used where there is a triable issue as to the validity of an adjudicator’s decision relied on as evidence of a company being unable to pay its debts: Towsey v. Highgrove [2012] EWHC 2644 (Chancery Division).

 Michael Mendelblat, a professional support lawyer in our London contentious construction team, reviews this case. Continue reading

UK High Court reviews temporary binding effect of adjudicator’s decision

A fundamental characteristic of adjudication as a form of ADR is that it is binding only until the dispute is finally decided through litigation or arbitration. Indeed, the UK Construction Act provides that adjudicator’s decisions are binding on the parties until the dispute is finally determined by other proceedings or agreement. This precludes subsequent decisions by the same adjudicator on the same issues: Vertase v Squibb [2012] EWHC 3194 TCC (13 November 2012). Continue reading

UK: further case on enforcement and severability of adjudicator’s decision

In its third judgment on severability in 2012 (see earlier cases Working Environments Ltd v Greencoat Construction [2012] EWHC 1039 and Beck v UK Flooring [2012] EWHC 1808 (TCC)) the English High Court has ruled that an adjudicator’s decision can be enforced in part only, severing the part reached without jurisdiction. However, where (as here) only one issue is decided by the adjudicator, severance will only be possible where the reasoning of that section is not integral to the remainder of the decision: Lidl UK GmbH v R G Carter Colchester Ltd [2012] EWHC 3138 (TCC). Continue reading

UK adjudication: Court of Appeal denies adjudicator his fees in light of breach of natural justice

The Court of Appeal in PC Harrington Contractors Ltd v. Systech International Ltd [2012] EWCA Civ 1371 has held that where an adjudicator produces a decision that is unenforceable due to a breach of the rules of natural justice, then his fees should not be paid. The adjudicator’s decision was unenforceable because he had failed to consider part of the sub contractor’s defence.  In overturning the first instance decision, the Court decided that the adjudicator’s duty was to produce an enforceable decision and there was no entitlement to be paid if he did not do so, even in respect of services performed by him which were preparatory to making the decision. Continue reading

Clear wording is needed to constitute a submission to the jurisdiction of an adjudicator to resolve a dispute

In Clarke v JMD [2012] EWHC 2627 (TCC) the court found that the parties had not entered into an ad hoc adjudication, contrary to the adjudicator’s finding. As such, the adjudicator had no jurisdiction to make a decision. The judgment raises interesting issues regarding ad hoc adjudications and the conduct required to constitute submission to the jurisdiction of the adjudicator. Continue reading

Scottish court reviews the applicability of natural justice to an adjudicator’s decision

An adjudicator’s decision will only rarely be challengeable on the ground of inadequate reasons. It would have to be shown that the reasons were so incoherent that the reasonable reader could not make sense of them. Likewise the decision cannot be criticised if the adjudicator has asked himself the right question but has given the wrong answer: PIHL UK v Ramboll [2012] CSOH 139. Continue reading

Two recent cases consider Barclays Bank PLC v Nylon Capital LLP [2011] EWCA Civ 826

We previously reported on the Court of Appeal decision in Barclays v Nylon. In that case, the Court of Appeal considered whether there should be a stay of court proceedings pending expert determination under an agreement between the parties. It ruled that the expert in the case did not have jurisdiction to decide the dispute, and so there should be no stay of the proceedings. Two recent cases have considered Barclays. Continue reading

Adjudicator answers correct question so decision enforced in Urang Commercial Ltd v Century Investments Ltd and Eclipse Hotels (Luton) Ltd [2011] EWHC 1561 TCC

Edwards-Stuart J in the Technology and Construction Court considered applications for summary judgment in two separate adjudication enforcement actions, brought by a contractor against an employer. The adjudicator had decided the dispute in favour of the contractor, but the employer failed to comply with the resulting order. The contractor applied to the court for enforcement, and the employer resisted this on the basis that the adjudicator had answered the question wrongly: Urang Commercial Ltd v Century Investments Ltd and Eclipse Hotels (Luton) Ltd [2011] EWHC 1561 (TCC). Continue reading