Module 2 Exam Cases

Front 1

Maymac Environmental Services Ltd v Faraday Building Services Ltd (2000)

Back 1

Implied agreement as to existence of contract as parties had agreed to adjudicate on it.

Front 2

Whiteways Contractors (Sussex) Ltd v Impresa Castelli Construction (UK) Ltd (2000)

Back 2

Requesting an adjudicator to determine his juriisdiction gives him authority to do so.

Front 3

Discain Project Services Ltd v Opecprime Development Ltd (2001)

Back 3

Telephone communications with one party about substantive issues need to be fully recorded and sent to the other party for comments.

Front 4

Porter v McGill (2002)

Back 4

Fair minded observer used

Front 5

Dean & Dyball Construction Ltd v Kenneth Grubb Associates Ltd (2003)

Back 5

Both parties must be informed of the substance of communication the adjudicator receives and be given the opportunity to comment on it, for the sake of natural justice.

Front 6

London and Amsterdam Properties Ltd v Waterman Partnership Ltd (2004)

Back 6

Late information can be excluded if insufficient time allowed for the parties to consider it and respond.

Front 7

Balfour Beatty Construction Northern Ltd v. Modus Corovest (Blackpool) Ltd (2008)

Back 7

Coulson noted that 'an adjudicator is not obliged to decide each and every point argued, but only those that are genuinely ' en-route' to deciding an underlying dispute between parties.'

Front 8

Amec Capital Projects Ltd v. Whitefriars City Estates Ltd (2004)

Back 8

- Fair minded and informed observer test used for adjudication to determine bias allegations.
- Only properly arguable objections should be used for allegations of lack of natural justice.
- If one adjudication was a nullity, it can be heard again in a subsequent adjudication

Front 9

Pegram Shopfitters Ltd v Tally Weijl (UK) Ltd (2003)

Back 9

Parties can agree to be bound by the adjudicators decision

Adjudicator wrongly appointed so lack of jurisdiction.

Front 10

Balfour Beatty Engineering Services (HY) Ltd v Shepherd Construction Ltd (2009)

Back 10

Decisions must be intelligible and not wholly unreasoned if reasons are required.

Front 11

Project Consultancy Group Ltd v The Trustees of the Gray Trust (1999)

Back 11

'Ad hoc' jurisdiction rights can be inferred by parties requesting adjudication, unless reserved objections are made initially.

Front 12

Cowlin Construction Ltd v CFW Architects (2003)

Back 12

Professional fees and professional negligence claims are suitable for adjudication.

Front 13

Glencot Development and Design v Ben Barrett & Son (Contractors) Ltd (2001)

Back 13

Adjudicators decision creates a contractual obligation for parties to comply. Scheme 23(2), Act 108(3). Enforcement is for that contractual breach.

Perceived bias established by mediating prior to adjudicating.

Front 14

Griffin (t/a K&D Contractors) v. Midas Homes Ltd (2000)

Back 14

The adjudicator only has jurisdiction to determine the dispute set out in the notice of adjudication.

Front 15

AC Yule & Son Ltd v Speedwell Roofing & Cladding Ltd [2007]

Back 15

-​An extension of time request may be acquiesced by conduct or silence. It can only be refused by making it clear.

Front 16

Ale Heavy Lift v MSD (Darlington) Ltd [2006] EWHC

Back 16

Where jurisdictional challenge on a ground not made then later challenge deemed waived.

Front 17

Amec Civil Engineering Ltd v Secretary of State for Transport [2004] EWCA

Back 17

7 propositions;
'Dispute' should be given it's normal meaning.
Litigation has not generated any hard egded definition but has given some good guidance.
Non-admission or denial, rather than just notification gives rise to a dispute.
Non-admission circumstances are Protean. Silence may suffice.
Silence forming dispute must depend on circumstances to be valid.
deadlines for responses are not automatically accepted but may be relevant factors in court.
Ill defined or nebulous claims that cannot reasonably be responded to are unlikely to give rise to disputes.

Front 18

ASM Shipping Ltd v TTMI ltd [2005] EWHC

Back 18

Arbitrator continued although later deemed to have a conflict of Interest from recent unrelated case with previously known witnesses accused of impropriety. Judge concluded he should have withdrawn.

Front 19

Aveat Heating Ltd v Jerram Falkus Construction Ltd [2007]

Back 19

-​The Scheme replaces all of the adjudication provisions where the contract does not comply with 108 of the HGCR the Act, unless it also gives provision for how that would work.

-​Fractions of the day were to be ignored in calculating the period for decisions.

-​Referral receipt commences the 28 day deadline.

Front 20

Balfour Beatty Construction Ltd v London Borough of Lambeth [2002]

Back 20

-​A critical path analysis was done and criticised by courts for 'making the case' for a party. The work was not disclosed to the parties for comment.

-​If a decision cannot be made in time and additional time is not given then the adjudicator should resign.

Front 21

Barnes & Elliott Ltd v Taylor Woodrow Holdings Ltd & Wimpey Southern [2003]

Back 21

-​Decision one day late was still enforceable under contract.

Front 22

Grovedeck Ltd v. Capital Demolition Ltd [2000] BLR 181

Back 22

Contractual clauses can allow for multiple disputes or contracts under the Act but not if the Scheme applies.

Front 23

Sherwood & Casson Ltd v. MacKenzie Engineering Ltd (2000)

Back 23

Adjudicator must resign if dispute is substantially similar to a previously determined one.

Front 24

Beck Pepiatt Ltd v Norwest Holst Construction Ltd [2003]

Back 24

-​'Dispute' is to be given it's ordinary meaning.

Front 25

Bloor Construction (UK) Ltd v Bowmer & Kirkland (London) Ltd [2000]

Back 25

-​The adjudicator has implied powers to correct an error or remove an ambiguity provided it is an accidental error/omission which reflects his original intention and that it is made within a reasonable time and without prejudicing the other party.

Front 26

Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd [2000]

Back 26

- ​If a decision answered the right question but contained errors of arithmetic, it will still be enforceable.

Front 27

Bridgeway Construction Ltd v Tolent Construction Ltd [2000] CILL

Back 27

Express clause stated that referring party should pay all costs. Courts upheld clause.

Front 28

Cantillon Ltd v Urvasco Ltd BLR 250, [2008] EWHC 282 (TCC)

Back 28

The responding party is entitled to raise any defence to the claim being made, that is legal, and the adjudicator must consider it.

Front 29

Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005]

Back 29

-​Court determined that the dispute had not crystallised before the adjudication notice.

-​Interest cannot be awarded unless specifically asked for or is in the contract terms.

-​Adjudicator does not have the jurisdiction to determine a dispute which was made orally even though the contract itself is in writing.

-​If the adjudicator declined to consider evidence which he felt was irrelevant that was neither a breach of natural justice nor a failure to consider relevant material.

Front 30

Christiani & Neilsen Ltd v Lowry Centre Development Co Ltd [2000]

Back 30

-​Adjudicators have the right to enquire as to their own jurisdiction.

-​Parties cannot 'contract out' of the terms of the HGCRA.

Front 31

Collins (Contractors) Ltd v Baltic Quay Management (1994) Ltd [2004] EWCA

Back 31

Negotiations and discussions were more likely to support there being a dispute than not.
Courts were likely to infer a dispute from non-admission to allow it to go to adjudication.

Front 32

Comsite Projects Ltd v Andritz AG [2003]

Back 32

-​Works comprised under HGCRA 105 give a right to adjudication despite which country the contract law is deemed to be.

Front 33

Costain v Strathclyde Builders (2004)

Back 33

-​An adjudicator's decision can be set aside if a party can demonstrate the 'mere possibility of unfairness'.

-​Parties must be given the chance to see and comment on all relevant information.

- If adjudicators own knowledge is used, parties must be told and have an opportunity to comment.

Front 34

Cubitt Building & Interiors Ltd v Fleetglade Ltd [2006]

Back 34

-​A decision later than the middle of the day after the deadline would not be 'forthwith' under JCT cl 41A.

-​A late referral due to late ANB appointment would not invalidate the adjudicator's appointment/jurisdiction.

Front 35

Fastrack v Morrison Construction Ltd & Anor [2000]

Back 35

-​If the Scheme applies, a widely written referral notice can decide the whole dispute.

-​If contract complies with the Act then perfectly permissible for it to provide for the referral of more than one dispute in the same referral.

- An adjudicator should enquire into his own jurisdiction if challenged.

Front 36

Fiona Trust and Holding Corp v Privalov [2007] EWCA

Back 36

-​The phrases 'arising out of', 'arising under' and 'in connection with' the contract may have the same weight of meaning.

Front 37

Haden Young Ltd v Laing O'Rourke Midlands Ltd [2008]

Back 37

-​Insufficient evidence of written acceptance to form a (sub-)contract. Courts agreed that payment for works done is to be valued on a 'Quantum Meruit' basis.

Front 38

Hart Investments Ltd v Fidler (2006)

Back 38

-​Referral outside the 7 days under the Scheme will not give jurisdiction.

-​All the terms of a contract must be in writing for the adjudication provisions of the Scheme to apply.

Front 39

HG Construction Ltd v Ashwell Homes (East Anglia) Ltd (2007)

Back 39

-​The courts refused to enforce an adjudication that was the same or substantially the same as a previous one.

Front 40

Hills Electrical & Mechanical Plc v Dawn Construction Ltd [2004]

Back 40

-​If some contractual adjudication payment provisions fail to comply with the Act then those that do not comply with the Scheme apply instead.

Front 41

Holt Insulation Ltd v Colt International Ltd (2001)

Back 41

-​Question answered was no, the amount (£50K) was not due. 2nd adjudication asked for 'or other such sums as the adjudicator may decide' and was deemed a different adjudication dispute by the courts.

Front 42

IDE Contracting Ltd v RG Carter Cambridge Ltd (2004)

Back 42

-​The notice of adjudication has to be issued to the other party before a request concerning the availability of a named adjudicator can be made or the adjudicator may not have jurisdiction.

- An indication that a named adjudicator cannot accept appointment needs to be communicated to all parties prior to making a new appointment or contacting an ANB.

Front 43

John Mowlem Ltd v Hydra-Tight Ltd [2002]

Back 43

-​If some contractual adjudication provisions fail to comply with the Act then all fail and the Scheme applies.

- 'Notification of dissatisfaction', under NEC contract, that delayed a referral by several weeks was not compliant with the Act. Parties have a right to adjudicate at any time.

Front 44

Macob Civil Engineering Ltd v Morrison Construction Ltd [1999]

Back 44

-​The proper procedure for enforcing an adjudicator's decision is by application to the TCC for summary judgement under part 24 of the Civil Procedure Rules.

-​An adjudication decision is binding and enforceable, until set aside or reversed by arbitration or litigation.

-​Adjudicator has right to determine if the Scheme is applicable.

Front 45

Northern Developments (Cumbria) Ltd v J&J Nichol [2000] BLR

Back 45

HHJ Bowsher QC concluded that under the Scheme an adjudicator cannot award costs. However, express clauses can allow for this.

Implied clauses were given as each party requested their costs to be awarded.

Front 46

Pinochet v Amnesty International

Back 46

-​Perceived bias of party's wife working for other party.

Front 47

RG Carter v Edmund Nuttall Ltd (2000)

Back 47

-​An application for an injunction to stay adjudication proceedings on the basis of lack of jurisdiction is not likely to succeed.

Front 48

CIB Properties v. Birse Construction (2004)

Back 48

Adjudicator should resign if he has insufficient time to make a fair decision.

Front 49

Quietfield Ltd. v. Vascroft Contractors Ltd (2006)

Back 49

Similar disputes made on different grounds or to different operational stages will be considered different and not binding on later decisions.

Front 50

RJT Consulting Engineers Ltd v DM (Northern Ireland) Ltd

Back 50

-​All main terms of the contract must be evidenced in writing.

Front 51

RSL (South West) Ltd v Stansell Ltd

Back 51

-​All parties must be given the opportunity to read and comment on any technical advice used in making a decision.

Front 52

Rupert Morgan Building Services (LLC) Ltd v Jervis (2003)

Back 52

-​The architects certificate determines the sums due, not the actual work done. In the absence of a s111(1) withholding notice the payment is due.

Front 53

Samuel Thomas Construction Ltd v J & B Developments (Bick and Bick)

Back 53

-​ Only part of a residential development was to be occupied by the developer and so the exception in HGCRA 106(1)(a) did not apply and there was a right to adjudication.

Front 54

Sindall v Soland and others [2001]

Back 54

-​Whether a dispute had arisen before the adjudication notice.

-​A dispute existed when 'it was clear that a point had emerged from the process of discussion or negotiation that has ended and that there is something that needs to be decided'.

Front 55

Mott MacDonald Ltd v London & Regional Properties Ltd.

Back 55

- Decision must be delivered as soon as possible after the decision is made.

Front 56

Pring & St Hill Ltd v. CJ Hafner t/a Southern Erectors [2002] EWHC 1775 (TCC)

Back 56

Decision overturned due to unfairness and thus perceived bias.

Adjudicator proceeded without express consent of the other parties for multiple disputes.

Front 57

Sir Alexander Morrison v AWG Group Ltd [2006] EWCA

Back 57

Judge should have withdrawn from the case due to a real possibility of perceived bais rather than actual bias or personal interest, as he had known one of the witnesses to be called.

Front 58

Orange EBS Ltd v. ABB Ltd (2003)

Back 58

Failure to deal with a claim within one month constituted a dispute in those circumstances.

Front 59

Fileturn Ltd v. Royal Garden Hotel Ltd

Back 59

Mr Sliwinski working as a company director 6 years previously in adjudication did not constitute bias.

Front 60

SL Timber Systems Ltd v Carillion Construction Ltd [2001]

Back 60

-​Payment claim must be substantiated for a withholding notice to be required.

Front 61

Westfields Construction Ltd v Clive Lewis [2013] EWHC TCC

Back 61

Court 'preferred' independant witness statements.
s106 requires ongoing residential occupation for the exception to be valid.

Front 62

Whyte and Mackay Ltd v Blyth & Blyth Consulting Engineers Ltd [2013] CSOH

Back 62

Some highly complex and not speed dependant cases may be inappropriate for adjudication. Courts refused to sever part of the decision even though acknowledging a certain unfairness.

Front 63

William Verry Ltd v North West London Communal Mikvah [2004]

Back 63

-​1 day late for the referral was not felt to be fatal to the adjudication as it was procedural not mandatory.

- An adjudicator should resign if there is insifficient time to make a fair decision.

Front 64

Yarm Road Ltd v Costain Ltd (2001)

Back 64

A novated contract is classed as a new contract. This made it under the new Act.

Front 65

Yuanda (UK) Co Ltd v WW Gear Construction Ltd [2010]

Back 65

-​If some contractual adjudication provisions fail to comply with the Act then all fail and the Scheme applies.

-​Effectively does away with Tolent clauses as being not compliant with the Act, now expressly dealt with under the revised Act`.

-​If there are written adjudication clauses in the agreement that comply with the Act then this will give jurisdiction even with residential disputes or excluded construction operations

-​As the contract interest rate was 0.5% above base it was successfully argued that this was not a substantial remedy under s8(1) of the Act and so should be replaced with the current rate of the Act of 8% above base.