Newsletter No 8 – September 2006
Summer has gone for yet another year and with it
those glorious sunny days and balmy temperatures.
For most of us, our summer holiday seems like a
lifetime away already. The traffic has got heavy again
now the schools are back, the evenings are getting
darker earlier and Christmas is looming.
Business Development
The RJC team welcome aboard Bano Nazir, who
replaced Sharon Ackroyd as our Slough Secretary
in June.
RJC is taking advantage of the relatively new free
global telephone and video conference calling service
SKYPE. We believe that this has a huge potential to
enable us to offer clients a more cost effective service
via the video conferencing facility, which can save
unnecessary costs of meetings as well as freeing up
valuable time.
Marketing
In May RJC had the pleasure of hosting another
evening at the races, this time at Newbury. The
event was well attended and provided an opportunity
for Clients and the RJC team to meet away from the
usual environment and pressure of work. Although
the action on the course was exciting we have to
report that there were no big winners amongst us.
Dispute Resolution Update
By Ray Crabbe
The summer sees RJC involved in several Arbitrations, Expert work and the usual run of claims/negotiations and Adjudications.
Arbitration has not been the first choice of parties to
standard forms of contract for some years so what has
changed? I suspect, the limitations of Adjudication
are coming to the fore. These include the problem of
getting consistently good quality decisions on complex
issues and of course the willingness of the parties to
finalise issues once the interim (but binding)
Adjudicator’s decision is received.
Notwithstanding these problems, Adjudication has
been firmly embraced by the industry as the number 1
method of resolving disputes and rightly so. There is
no doubt that used properly Adjudication is a powerful
tool that enables the parties to achieve certainty (and
usually settlement) of the day to day disputes and
differences that regularly occur in construction
activities. These include payment difficulties, issues
over time (entitlement to EOT), termination of the
contract (determination), practical completion, defects,
arguments over LADs etc etc.
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RJC is proud of its record in advising its clients when
to Adjudicate (or Arbitrate) and assisting them (or
representing them) in the process. Utilising RJC’s
considerable expertise ensures that our clients get the
best results and frees up their resources to do what
they are best suited to (ie run their business).
For more information, on how we can help you in this
area contact either Roger Smith or myself at our
Bristol or Slough offices.
A Different Dispute, or Same One?
By Roger Smith
In the recently reported case Quietfield Limited v
Vascroft Contractors Limited [2006] EII ER (D) 17
(Feb), RJC acted on behalf of the defendants,
Vascroft. In this case, the claimant sought to enforce
an adjudicator’s decision that the defendant should
pay the claimant an amount of Liquidated and
Ascertained Damages for a specific period of delay
beyond the Date for Completion. There had already
been a previous adjudication between the parties,
during which the defendants had then been the
referring party and had sought the award of an
extension of time, based on certain issues, although
none was awarded. The adjudicator in the first
adjudication decided that the referring party had
failed to discharge its burden of proof.
In the second adjudication, referred by the claimant,
the claimant sought the recovery of LADS for the
period in question in the first adjudication. In
response, the defendant submitted a further and
different extension of time claim complete with logic
linked programmes, critical paths and delay
analyses. The adjudicator refused to consider this
further extension of time claim on the basis that it
had been decided in a previous adjudication that the
defendant had failed to prove its case. Accordingly,
he made an award in favour of the claimant. The
defendant refused to pay, and the claimant issued
enforcement proceedings.
Mr Justice Jackson reviewed the extension of time
claims submitted during the course of both
adjudications and concluded that they were different
claims. Whilst the Scheme for Construction
Contracts (England and Wales) Regulations 1998, SI
1998/649 (“the scheme”) provides that:
“An adjudicator must resign where the dispute is the
same or substantially the same as one which has
previously been referred to adjudication and a
decision has been taken in that adjudication”; this
was not the case in this instance and accordingly
the adjudicator was wrong not to consider the
extension of time claim as a defence to the levying of
LADs. Accordingly, the award in the second
adjudication was not enforced. |