Adjudication Case Notes & Guidance Notes

Welcome to Fenwick Elliott’s Adjudication case notes. Since the first case on enforcement of an adjudicator’s decision of Macob Civil Engineering v Morris Construction Ltd [1999] EWHC there have been hundreds of cases dealing with a wide variety of adjudication issues under the Housing Grants, Construction and Regeneration Act 1996. Our data base lists in excess of 450 cases reported (in some cases unreported) in England, Wales and Scotland.

The case notes have been written or edited by Nicholas Gould who has been the editor of the Adjudication Society Case Notes since the Society’s inception in 1999. He is assisted currently by Laura Bowler. A full transcript of most cases is available as a PDF on the Adjudication Society website [1].

A selection of the most recent cases can be found via the link in the right sidebar, or by clicking here [2].

Adjudication Guidance Notes

The Adjudication Society and the Chartered Institute of Arbitrators have been working together in order to produce a series of adjudication guidance notes. It is hoped that these brief Guidance Notes will provide some guidance to adjudicators, parties and their advisors.

January 2016

Now in their third edition, the Guidelines were first published in 2011 with the aim of providing a sensible and practical approach to some of the everyday issues encountered in adjudication in relation to jurisdiction.

The 2012 edition had incorporated the amendments made to the Housing Grants, Construction and Regeneration Act 1996 by the Local Democracy, Economic Development and Construction Act 2009.  However, the time was felt right for a review given the Act (as amended) has now been in force for a number of years.

A consultation was undertaken in the autumn of 2015 with feedback and comments reviewed and debated by a drafting committee as well as CIArb and the Adjudication Society.

The minor revisions in the 2016 edition are as follows:

• Clarification that the Guideline does not extend to international standard forms providing for adjudication such as the FIDIC forms of contract;
• Amendments to Paragraph 2.1 dealing with threshold jurisdiction. These now provide that an “initial and proportionate review to flag any issues” on jurisdiction should be undertaken by the adjudicator upon accepting the appointment.  The committee considered that this is right as a matter of law but the revised wording makes it clear that the adjudicator's review of his or her jurisdiction needs to be proportional and based on the information available as at the time of the Adjudication Notice.  A distinction has been made between the initial conflict check that an adjudicator should carry out and the checklist of jurisdictional hurdles that an adjudicator should keep under review during the adjudication;
• In Paragraph 2.1.2.10, an endnote now flags that some rules provide for more than one dispute to be referred to adjudication and refers to the Willmott Dixon Housing Ltd v Newlon Housing Trust case.
• Sections 2.5 and 2.6 have been amended to clarify the position regarding costs.

Click here [3] for the revised Guideline.

May 2013

The Adjudication Society has published four additional Guidance Notes. These are:

Guidance Note: Construction Contracts and Construction Operations [4]
Guidance Note: Adjudicator’s Liens [5]
Guidance Note: Natural Justice [6]
Guidance Note: The Scheme for Construction Contracts [7]

The first of these sets out the basic principles in relation to the Scheme for Construction Contracts identifying those applicable in England, Wales and also Scotland. Reference is made to the original 1998 Scheme, but also the more recent updates.

Adjudicator’s Liens deals briefly with issues in relation to adjudicator’s liens and notes that they are generally note applicable to adjudication.

The Natural Justice Guidance Note covers some of the issues in relation to natural justice as it arises in relation to the initial appointment and then during the conduct of the adjudication.

Finally, the Guidance Note dealing with Construction Contracts & Construction Operations deals with the complex definition in the Housing Grants, Construction and Regeneration Act 1996 and simply identifies the case law applicable to the particular provisions.

Nicholas Gould, Past Adjudication Society Chairman, Partner, Fenwick Elliott, Chairs the Guidance Notes Sub-Committee.

To search all our case notes, or browse our archives, please click here [2].