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RJC Consultants Newsletter No.6 September 2005 |
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Now that the heady days of summer have gone for another year, we at RJC are pleased to keep you up to date with our 6th Newsletter. Marketing We are moving...
Dispute Resolution Update The quality of Adjudicator’s Decisions are a bit like the ‘Curate’s Egg’ i.e. good in parts. This means that sensible commercial strategy and good preparation are the key to getting the best possible results. So, if you are contemplating being the Referrer make sure RJC is involved early enough to assist you in arriving at the best commercial strategy and leaving enough time for proper preparation so that, despite the vagaries of Adjudication, you get the best result. Alternatively, if you are unfortunate enough to be on the receiving end of a Notice of Adjudication, don’t wait too long before involving RJC, otherwise you will be unprepared and defending your position without much time to consider strategy. Even the best strategy and preparation can come unstuck if the Decision does not come down in your favour. So why is Adjudication so popular? The answer is probably that; a) it is available to either party (in most cases), b) it is available at any time, c) the process cannot be ignored by the other party and d) it produces a (usually) enforceable Binding Decision in a relatively short period of time. This is something no other form of Dispute Resolution can offer. In other words, it is the best option available and hopefully you will achieve most of the outcomes that you require. However, it is not a panacea for all ills and you will be lucky not to come across a few shocks on the way. |
Will the Adjudicator’s Decision be Enforced? You decide not to comply with the Adjudicator’s Decision and to let the other party instigate enforcement proceedings. By the time the case comes to Court you plan to have a robust defence for not complying with the Decision and to be able to persuade the Judge that you are right. Will the Decision be enforced? Probably, yes. And The recent important case of Carillion Construction Limited v Devonport Royal Dockyard Limited considered the validity of a number of reasons for challenging an Adjudicator’s Decision and provides support for our gloomy prediction. These challenges included jurisdiction, natural justice, adequacy of reasons given for the Decision and the Adjudicator’s right to award interest where no interest claim has been made. The outcome? The Decision was enforced. This case emphasises the Courts approach to enforcement, i.e. the Courts will look for reasons to enforce rather than for reasons not to enforce. After all, whilst Adjudication provides a binding Decision, it is only binding until over turned by higher judiciary. So, those seeking to challenge a Decision, rather than seek final determination by a higher judiciary, must have exceptionally sound reasons for doing so. Good news of course for those seeking to enforce! Should you wish to know more about Carillion Construction Limited v Devonport Royal Dockyard Limited, or should you want to know more about enforcing/challenging a Decision, please do not hesitate to contact any of the RJC offices. The Pre-Action Protocol for Construction and Engineering Disputes – The Basics The Protocol encourages the early exchange of full information before a prospective legal claim commences. It also enables parties to avoid litigation, and therefore cost, by settling a claim before legal proceedings are begun. A structure for communication is proposed, starting with a letter of claim, the defendant’s acknowledgement, the defendant’s response and a pre-action meeting. We at RJC Consultants (in conjunction with your legal advisers if appropriate) can help you not to fall foul of the process as well as advise you of the other options available to you. |
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