The Statutory Provisions Relating to Payment

At the heart of these provisions is the attempt to ensure that every construction contract contains a transparent and straightforward mechanism for the payment to the contractor of interim payments on account (sometimes called instalments or progress payments). In addition it recognizes that, although there will inevitably be a period between the date on which a payment becomes due, and the final date on which that sum must be paid, it imposes an obligation on the payer to notify the payee well in advance of the final date for payment how much is going to be paid and how that sum has been calculated.

The Statutory Provisions Relating to Adjudication

The provisions relating to adjudication are set out in Part II of the 1996 Act, as amended by the 2009 Act. They are included at Appendix A. The Scheme for Construction Contracts is at Appendix B. The early cases in which the principles behind Part II were considered by the courts remain of critical importance. In Macob Civil Engineering Ltd v Morrison Construction Ltd, the adjudicator had directed that Morrison should pay Macob £302,366.34 plus VAT, interest and fees. The principal dispute in the adjudication concerned the agreement between the parties as to the relevant dates for payment.

Principles of Enforcement

It is only too easy in a complex case for a party who is dissatisfied with the decision of an adjudicator to comb through the adjudicator’s reasons and identify points upon which to present a challenge under the labels ‘excess of jurisdiction’ or ‘breach of...

Stay of Execution

In considering what is just and fair in an application for a stay of execution of a summary judgment under Part 24 in circumstances such as these, the court must be careful not to reallocate the commercial risks accepted by the parties who engage in...

The Latham Report and Its Aftermath

A graph that indicated the health (and otherwise) of the construction industry in the UK in the twentieth century would make a startling sight: a bewildering series of peaks and troughs that often, but not always, mirrored the wider health of the UK economy. On occasions in the past, many have endeavoured to promote or otherwise help the construction industry, with a record of success that can only be described as mixed. Changing priorities amongst the senior judiciary have not always helped to encourage stability and certainty.

Costs and Fees

This part of this chapter addresses four areas of debate which have arisen in the reported cases in connection with the costs of adjudication. There is what might be termed the usual position as to costs; the possibility that the adjudicator has an ad hoc jurisdiction to decide costs; and issues arising out of particular contractual provisions noting a potentially important difference between the law in England and Wales and the law in Scotland. Finally there is a section dealing with s108A of the 1996 Act.

The Adjudicator’s Decision

Reasons It is often forgotten that, under the Scheme for Construction Contracts, the adjudicator is not required to give reasons unless at least one of the parties requires them. Thus it is necessary for one or both of the parties to notify the...

General Principles

Over the last decade, it has become increasingly common for the losing party in an adjudication to endeavour to avoid the consequences of the adjudicator’s decision by claiming that the decision was reached in breach of the rules of natural justice. Often, the complaints relied on will have first arisen during the adjudication itself, and the adjudicator may have found himself struggling to come to terms with a number of unfamiliar procedural rules, which have their history in administrative law, and can sometimes be extremely difficult to shoehorn into the constrained timetable of an adjudication.

The Adjudication Itself

Directions Only once the referral notice has been served should the adjudicator make directions for the conduct of the adjudication. He should consider the detail of the referral notice and then consider how the dispute should be managed through to his decision. The...

Contractual Adjudication

Part II of the Housing Grants (Construction and Regeneration) Act 1996 (‘the 1996 Act’), as amended, requires all construction contracts to have an adjudication procedure that complies with s108: see s108(5). The same section makes plain that if the construction contract in question does not contain adjudication provisions that comply with s108(1)–(4), then the Scheme for Construction Contracts will apply. It is therefore envisaged that the construction contract will include its own adjudication provisions.