Introduction

In our last blog post we discussed mitigation and construction disputes. We looked at a situation where a contractor refuses to rectify defective work and the employer engages another contractor to undertake the remediation. Subsequently, the employer seeks to recoup the remediation costs from the initial contractor. In those circumstances, we looked at the importance of considering whether the employer has mitigated its loss. Continuing the theme of defending an employer’s claim, in this post we consider betterment. A betterment defence is often run in tandem with mitigation.

Betterment relates to the correction of a defect in such a

Continue Reading Betterment and Construction Disputes

Disputes often arise in relation to defects. For example, an employer may contend that a particular work item is defective, while a contractor may argue that the item is not defective. Usually, the employer will request that the defective work is remediated by the contractor. If the contractor fails or refuses to remediate the work item, the employer will engage others to carry out the remediation and seek to recover the costs from the contractor. Similarly, an employer who terminates the contractor’s employment will engage another contractor to complete the project and seek to recoup the additional costs from the

Continue Reading Mitigation and Construction Disputes

Introduction

This month saw the UK Supreme Court give the long-awaited judgment in Abbey Healthcare (Mill Hill) Ltd v Augusta 2008 LLP (formerly Simply Construct (UK) LLP) [2024] UKSC 23, which considered whether a collateral warranty was a construction contract for the purposes of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996). Thereunder, a construction contract is defined as carrying out construction operations.

If a collateral warranty is a construction contract for the purposes of the HGCRA 1996, disputes arising thereunder can be adjudicated upon. However, if a collateral warranty is not a construction contract, disputes

Continue Reading Abbey Healthcare (Mill Hill) Ltd v Augusta 2008 LLP (formerly Simply Construct (UK) LLP) [2024] UKSC 23

Introduction

When sending contractual notices and other communications it is important to consider the contractual and/or statutory provisions regarding the form the communications should take.

For example, NEC requires that ‘communication which the contract requires is communicated in a form which can be read, copied and recorded.’ JCT provides that notices and other communications shall be in writing and can be ‘sent or transmitted by the means … as the Parties have agreed’ in the contract. Under the Construction Contracts Act 2013, if the parties do not agree on the manner for delivery of notices, then the notices can be

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Introduction

On occasion when a referring party in an adjudication process seeks leave to enforce an adjudicator’s decision, the responding party will argue that due to the referring party’s poor financial standing, it will not be able to repay the amount awarded if it subsequently transpires in arbitration or litigation proceedings that the sum directed to be paid was not in fact due and owing.

The circumstances in which the enforcement of an adjudicator’s decision will be stayed due to the finances of the referring party is an issue which has yet to be resolved by the Irish courts. The

Continue Reading Stay of enforcement of an adjudicator’s decision!

On 19 April 2024, the Irish High Court delivered judgment in McGill Construction Ltd v Blue Whisp Ltd [2024] IEHC 205. The key issues before the court were whether the adjudicator had jurisdiction to determine a preliminary issue in respect of their own jurisdiction and what constitutes valid grounds to resist the enforcement of an adjudicator’s decision under the Construction Contracts Act 2013 (the Act).

The court considered that as an exception to the general principle that an adjudicator does not have jurisdiction to make a determination to their own jurisdiction, the parties can, ‘by agreement’, confer

Continue Reading Kompetenz-Kompetenz and new grounds of opposition to enforcement

Introduction

The annual reports from the Chairperson of the Construction Contracts Adjudication Panel indicate that, to date, adjudicators have dealt with some large value disputes. For example, in 2021 the amounts in dispute in four adjudications were over €10m. Of course, the amount in dispute does not automatically mean that the dispute is overly complex. A smaller disputed amount may give rise to more complex issues.

As adjudication is a speedy process, the question arises as to whether a dispute may be too large or complex for adjudication. To date, this matter has not been dealt with by the Irish

Continue Reading Adjudication and complex large value disputes

The adjudication process moves quickly. Whether you are making or defending a claim, it is important to deal with the process efficiently. Using the process efficiently has several benefits, including, producing more robust, focused and cross-referenced adjudication documentation together with time and cost savings.

There is awareness amongst those involved in construction disputes that having contemporaneous documentation is vital. However, it is important that the documentation is accessible and filed in a logical file structure. Many contractors and sub-contractors have very sophisticated document management systems while others may use less sophisticated systems. From our perspective, no matter what system is

Continue Reading Adjudication efficiency and cost savings

This blog post may be of interest to our clients involved in construction adjudications in England and Wales. Under s108(1) of the Housing Grants, Construction and Regeneration Act 1996 (E&W) (Act) a party to a construction contract has the right to refer a dispute to adjudication. As reference to ‘dispute’ is in the singular, each matter referred consists of one dispute unless the parties otherwise agree. However, a dispute can contain multiple sub-issues, for example, a dispute concerning several variations.

An issue sometimes arises where a Referring Party makes a claim by arguing that (1) a valid payment

Continue Reading One dispute or two?

As we approach the end of 2023, we look back at the main developments in relation to adjudication. The year saw further clarity brought to the Construction Contracts Act 2013 (the ‘Act’) with the High Court delivering judgment in three cases concerning adjudication. There is undoubted support from the High Court regarding the adjudication process.

The year saw something for all involved in adjudication. Parties to the adjudication process can have confidence that should enforcement proceedings be necessary, the court will deal with enforcement swiftly. In one matter the enforcement procedure took under one month from start to finish.

Continue Reading Adjudication: The Year in Review