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JIM
UNICK RETIRED BUT NOT FORGOTTEN
The
circle of life at CDR is turning. As we welcome Scott Thomson, sadly
we announce the retirement of Jim Unick as Chairman and Director from
CDR.
Jim has been a Director of CDR since its inception in 1997 and, as
he reaches his 60th birthday, he has decided to step down. Jim will
continue to act as a consultant, just doing so with a further practiced
and refined golf swing.
FAR-EAST
SPEAKER
In
November last year, Janey Milligan, returned from Hong Kong where
she was a guest speaker on “Security of Payment in the Construction
Industry – Should
it be the subject of legislation in Hong Kong?” at the Lighthouse
Club Conference. Janey spoke about UK legislation regarding payment
terms within the construction industry.
The aim of the Conference was to examine payment practices in jurisdictions
outside Hong Kong. Janey commented with particular reference to the
impact of the Housing Grants, Construction and Regeneration Act 1996.
Janey thoroughly enjoyed her visit and whilst there also took the
opportunity to meet members of the RICS where she delivered a presentation
on Trends in Dispute Resolution; Statutory Adjudication and Mediation.
PARTY
OF THE YEAR
At
the end of November, CDR held a party at Tiger Tiger in Glasgow to
celebrate its 10 year anniversary and recognise the hard work and
achievements which have contributed to establishing CDR as a well
respected organisation. A selection of our most loyal and supportive
clients, who have made a decade of success possible were invited.
The event was voted a huge success and again we would like to thank
all who attended and joined in the celebration on the evening.
After the event Janey remarked “The turnout was fantastic and we couldn’t
have hoped for a better atmosphere – here’s to the next 10 years and
more satisfied clients”.
LISA
CATTANACH STAR PUPIL
Congratulations
to Lisa Cattanach, who is now well on her way to attaining an LLM
in Construction Law and Arbitration from Robert Gordons University.
Lisa is studying by distance learning and impressed all with her achievements
in her first year exams. Her grades were sufficiently high to allow
her direct entry to Fellowship of the Chartered Institute of Arbiters,
subject to passing a peer interview. Let’s hope the second year is
as successful as the first year.
Lisa said “Undertaking the LLM in Construction Law and Arbitration
has helped to consolidate the practical expertise I have gained over
the years with the theoretical background”.
EUROPEAN
MEDIATION CONFERENCE 2007
Sponsored
by the Chartered Institute of Arbitrators, Kahleen, who organises
the Institute Mediation Group, attended the European Mediation Conference
2007 in Vienna on 27 – 29 September 2007. The Conference was attended
by around 300 delegates and dealt, broadly, with:
• Quality of mediators;
• Standards and Accreditation;
• Credibility of mediation and lifting its profile across Europe;
• The mediation process;
• The exchange of views; and
• The establishment of the European Mediation Network Initiative (EMNI).
As a practising Mediator, Kahleen found the course of particular interest
although she claims to have seen little of the wonderful destination!
CDR
ADJUDICATION CASE REVIEW
Within
this issue of the Newsletter we concentrate on the thorny issue of
timing in Adjudication, how it may effect your Decision and its enforcement.

Epping Electrical Company Ltd v- Briggs and Forrester (plumbing
Services) Ltd
This
case involved an application for summary judgement by Epping to enforce
an Adjudicator’s Decision. The contract between the parties stated
that adjudications were to be in accordance with Construction Industry
Council (CIC) procedure. After an agreement to extend the date for
Decision, the Adjudicator relayed to the parties on the date of said
Decision that it would be released when his invoice was paid. The
adjudicator subsequently released his Decision 2 days later.
Briggs argued that as they agreed to an extension on the condition
that the decision was to be released on that date and it wasn’t, the
Decision was 7 days late and as such unenforceable. Epping argued
that there was no such distinction within ‘the act’ or CIC procedure
between the ‘reaching’ and ‘delivery’ of a Decision. On the evidence
before them, the courts held that there is a distinction. If you agree
to an extension to the Decision date on the basis that the Decision
will be delivered, you better make sure you receive it, or it’s not
worth the paper it’s written on!
Aveat
Heating Ltd v- Jarram Falkus Construction Limited
Aveat was employed to perform construction works in terms of GC/Works
sub-contract conditions. Within this contract it was eventually held
that the Scheme was implied into the contract. Within the Scheme,
the courts interpreted, contrary to Jarrams arguments, that
referral date means the date of receipt by the adjudicator
not when the Referral was dispatched. This is of significance as the
Adjudicator took the decision date to the wire before issue, and if
the adjudication time-scale provisions were from the date of dispatch
the Decision would be late
AC
Yule & Sons Ltd v- Speedwell Roofing & Cladding Ltd
AC Yule began adjudication against Speedwell under the Scheme. If
you believe that silence is golden, Speedwell Roofing may disagree.
During the predictable actions and formalities within the adjudication
procedure, the adjudicator asked for an extension to the Decision
date. AC Yule responded positively, Speedwell didnt respond
at all however, submitted further information. The Decision was released
on a date accommodating the extension. When Yule attempted to enforce
the Decision Speedwell argued it was late and as such not enforceable.
Speedwell failed in that a reasonable man, acting honestly
and reasonably is under obligation to make it clear if they object
to an adjudicators request.
Conclusion
From the foregoing case we can see that the Courts are continuing
to maintain the position held in Ritchie Brothers v David Philps that
a Decision must be issued to the Parties on the Decision Date as the
latest. The days of being able to advise Parties that you had reached
your Decision by the Decision Date, and state it will be released
upon payment of fees are fast becoming a distant memory.
However, the good news for Adjudicators is the position held in the
AC Yule & Sons case where an Adjudicator requests an extension
to the Decision Date. One Party does not state its acceptance or otherwise,
however, acts as if it has agreed to an extension, the Party cannot
later contend that the Decision was issued late.
Reforming
the Construction Act An Adjudicators Perspective
The current construction legislation ‘flavour of the month’ is the
proposed re-jigging of ‘the Act’. The main points being considered
following consultation are;
• Improve transparency and clarity in the exchange of information
relating to payments to enable the better management of cash flow;
• Encourage the parties to resolve disputes by adjudication, where
it is appropriate, rather than by resorting to more costly and time
consuming solutions such as litigation; and
• Improve the right to suspend performance under the contract.
Janey L Milligan, Chairman of Construction Dispute Resolution, at
a recent seminar commented in relation to bullet 2 above;
“On
the whole the proposals are likely to make adjudication more accessible,
particularly to Parties lower down the supply chain which was the
initial intention of the Act. The possibility to award costs may make
adjudication more popular for some Parties who otherwise would have
chosen arbitration or court for their dispute. While I do have some
reservations about oral and partly oral contracts I am in favour of
the proposals”.
The information contained within this newsletter does not constitute
legal or other professional advice. Construction Dispute Resolution
will not be held liable for actions taken based on information contained
within. Further information on anything contained within this newsletter
is available upon request from info@cdr.uk.com
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