GSEL v Sudlows: Adjudication enforcement, natural justice and challenging a decision

Introduction

Adjudication can be a frustrating experience, particularly for those who have been faced with a decision of the adjudicator that is quite obviously (to you) wrong, but nonetheless enforceable.

This situation arises because it has long been accepted that, in adjudication, “the need to have the “right” answer has been subordinated to the need to have an answer quickly…” per Chadwick LJ in Carillion v Devonport Royal Dockyard [2005] EWCA 1358.

The Court’s stance on this issue is born from the original intent of the statutory scheme, which was to provide a means for contractors and subcontractors to address cash-flow problems caused by illegitimate delays or refusals to pay. In order to achieve that, adjudication decisions have to bear the weight of authority, otherwise every adjudication decision would immediately be challenged by the losing party.

The Courts also take into account the fact that the adjudicator is tasked with deciding often very complex and detailed disputes in a very short period of time. Errors in decision-making from time to time are therefore inevitable, but the Courts have determined that that shouldn’t be allowed to undermine the process.

Continue reading “GSEL v Sudlows: Adjudication enforcement, natural justice and challenging a decision”

Protests, Prosecutions and Pandemics: Will COVID kill HS2?

By Steve Nichol

The directors of HS2 Ltd must be firm believers of the old adage that no news is good news.

It’s no secret that the project has been beset with controversy right from the start – foremost amongst these being the budgetary underestimates that prompted criticisms of both the government’s procurement model for major infrastructure projects and the competence of those at the helm of the delivery company. So, when the Project was hit with a triple-whammy of bad press last week, those embattled directors and their government supporters must have needed it like a hole in the head. Continue reading “Protests, Prosecutions and Pandemics: Will COVID kill HS2?”

Aqua v. Benchmark: How Not to Settle a Dispute

By Steve Nichol and Matthew Friedlander

In its latest offering, “CLC COVID-19 Claims and Disputes in Construction” the Construction Leadership Council (CLC) predicts that disputes related to COVID-19 are set to rise in 2021. While the optimist may hope that parties will continue to or aim to work collaboratively in order to find workable commercial solutions to claims arising from the global pandemic, the realist knows that such disputes are inevitable. Continue reading “Aqua v. Benchmark: How Not to Settle a Dispute”

What Does the Brexit Deal Do for UK Construction?

By Steve Nichol

The final nail in the coffin of Christmas 2020 for me was getting a directive from NHS Test and Trace to self-isolate on the 23rd. So, instead of celebrating Christmas, I packed the missus off to her mother’s and settled down to read the snappily-titled “Trade And Cooperation Agreement Between The European Union And The European Atomic Energy Community, Of The One Part, And The United Kingdom Of Great Britain And Northern Ireland, Of The Other Part”. Otherwise known to you and me as the Brexit Deal. Continue reading “What Does the Brexit Deal Do for UK Construction?”

Wasn’t It Obvious? The Curious Case of ABC v. Network Rail

By Steve Nichol and Matthew Friedlander

At first glance, the Court of Appeal’s recent decision in ABC Electrification Ltd v Network Rail Infrastructure Ltd [2020] EWCA Civ 1645 might look like the culmination of an exercise in legal hubris. This was, after all, a case focussed on the meaning of a single word in a contract; moreover, a word – “default” – that most of us in the legal profession might say has a well-established meaning.

And, after several hundred thousand pounds of legal fees no doubt well spent, the Court of Appeal told the world that the word “default” means exactly what we all thought it meant – a failure to fulfil an obligation. Continue reading “Wasn’t It Obvious? The Curious Case of ABC v. Network Rail”

The Prime Minister’s New Deal: Invest More and Invest Quickly

By Steve Nichol

As my colleague Vijay Bange commented in his blog post on Tuesday, Boris Johnson has announced £5bn of new funding for building and infrastructure projects in the UK.

This sounds like a lot of money, but in real terms it is not anything like enough to restart the economy in the manner suggested by the Government. In the heady days before COVID-19, Chancellor Rishi Sunak announced new investment into infrastructure in the UK totaling £600bn between now and 2025. By comparison, £5bn is nothing like what is required to “level up” the economy in the way promised by the Chancellor. In his Dudley address, the Prime Minister confirmed that the £5bn promised was an accelerated release of those funds promised by the Chancellor, but it remains to be seen whether that £600bn will ultimately be released. Continue reading “The Prime Minister’s New Deal: Invest More and Invest Quickly”

Remobilising UK Construction needs Guarantees, not Guesswork- Part 2

By Steve Nichol and Matthew Friedlander 

Last week we discussed, in light of the encouragement from Robert Jenrick MP (Secretary of State for Housing, Communities and Local Government) for the construction industry to remobilise, the government’s apparent reluctance to provide confidence and clarity for the construction industry in respect of the safe operation of sites.

In the Prime Minister’s address to the nation on 10 May 2020, he re-stated that encouragement for the construction industry, where possible, to return to work. Continue reading “Remobilising UK Construction needs Guarantees, not Guesswork- Part 2”

COVID-19: Review of the UK Government’s Guidance on Responsible Contractual Behaviour

By Steve Nichol

On 7 May 2020 the UK Government published its “Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the COVID-19 emergency”.  Here are some of the key points arising and our analysis of the same.

It is not mandatory. The Guidance repeatedly stresses that the Government is merely strongly encouraging compliance with the Guidance, rather than suggesting that it is or should be mandatory.  However, as with previous policy announcements by the UK Government, it seems likely that public and local authorities, and indeed potentially companies such as Network Rail who are exercising delegated governmental authority, will be compelled to give greater regard and attention to the Guidance than the private sector. Continue reading “COVID-19: Review of the UK Government’s Guidance on Responsible Contractual Behaviour”

Remobilising UK Construction needs Guarantees, not Guesswork

By Steve Nichol and Matthew Friedlander

In yesterday’s edition of the Government’s daily coronavirus briefing, Robert Jenrick MP (Secretary of State for Housing, Communities and Local Government) relayed tales of how some local authorities have been able to continue essential fire safety work in the COVID-19 era in order to address defective and dangerous cladding in their areas.  He then went on to say:

I would urge any building owner or contractor…as soon as practicable, where it’s safe, to begin work once again.

If Mr Jenrick envisioned this statement as a call to arms for the industry to remobilise in a flurry of activity, it is likely that he will be disappointed. Continue reading “Remobilising UK Construction needs Guarantees, not Guesswork”

Coronavirus and Construction in the UK: The Time to Talk Is Now

By Steve Nichol and Tanya Chadha

In an industry of seemingly ever-tighter margins across the board, it is perhaps unsurprising that the construction industry has fought to continue through the current coronavirus crisis as much as it has.  However, many in the industry have stopped work and shut down sites and, despite the current and perhaps somewhat over-optimistic view from the government that work can continue whilst still complying with social distancing rules, it seems inevitable that all non-essential work will stop very soon.

As work grinds to a halt, it is increasingly clear that in the vast majority of projects, contracts will not provide a straightforward answer to most of the questions that will arise from the shutdown. There will be many grey areas and a significant risk of extensive disputes. To avoid this, or at least limit the scope of those disputes, parties need to be communicating these issues and discussing approaches and solutions now. Continue reading “Coronavirus and Construction in the UK: The Time to Talk Is Now”