Newsletter No 9 - March 2007
Another year has flown by all too quickly. RJC
continues to resolve disputes for both regular and
new clients and is looking forward to a busy 2007.
Business Development
We are pleased to announce that Roger Smith, who
joined RJC’s Board of Directors in May 2006, has been
elected to the Thames Valley branch of the Chartered
Institute of Arbitrators Committee.
Marketing
In December RJC had the pleasure of hosting
their annual Christmas meal at the Bleeding Heart
Restaurant in London. As usual, the food and wine
was excellent and the venue provided a congenial
atmosphere for clients to mingle with the RJC team.
Dispute Resolution Update
By Ray Crabbe
The dispute resolution process continues to evolve with
RJC involved in the usual round of adjudication and
arbitration work. This year we have also been engaged
in mediation work and overseas commissions. Main
contracts include construction management, PFI, JCT
variations and FIDIC contracts.
Adjudication remains the dispute resolution method
of preference and RJC is at the forefront of obtaining
the best results from the process. We have also
been successfully involved in enforcement issues on
adjudicator’s awards in the High Court and the Court
of Appeal.
For further details, advice or assistance email
raycrabbe@rjc-consultants.co.uk
A Mock Adjudication
By Roger Smith
In January 2007 RJC, in conjunction with lawyers
Veale Wasbrough, staged “A Mock Adjudication” as a
seminar for the RICS.
The presentation acted out the resolution of a fictitious
dispute between a bricklaying firm and a main
contractor, under the Adjudication process. Matters
considered included:
- What terms and conditions bound the Parties
- Whether the Adjudication should be conducted
under the terms of a contract, or under the Scheme
- Whether the Referring Party was out of time to
commence an Adjudication
- Whether a dispute had crystallised
- Whether the Responding Party’s counterclaim
constituted an Abatement or a Set Off and
whether the Adjudicator had jurisdiction to
consider the counterclaim
- New material presented part way through the
Adjudication process.
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Both parties’ cases were put to the Adjudicator at
a hearing, which was followed by the Adjudicator’s
reasoned presentation of his binding Decision.
For further information about this seminar and
seminars on other topics, contact Roger Smith at
rogersmith@rjc-consultants.co.uk
What is an Interim Binding Decision?
By Ray Crabbe
The industry is used to using adjudication to obtain
‘interim binding decisions’ between parties. This
process often entails several ‘serial’ adjudications on
‘bite-size’ elements of the final account. Sometimes
the separation of these specific controversial matters
of principle can lead to a simplification of the dispute.
An adjudicator’s award on these discrete issues may
lead to settlement of the overall dispute but what
happens if no settlement is achieved?
The HGCRA (1996) states that an adjudicator’s
award is binding on the parties until or unless the
matter is either finally agreed between the parties or
is overturned in a higher tribunal. So if after going
through the process of (often serial) adjudications the
parties remain dissatisfied with the outcome, what
happens next? This depends on whether the parties’
believe a different/better outcome could be achieved
by taking the matter further.
Most parties are pragmatic and settle for the position
determined by the adjudicator either by default or
by expressly confirming the interim binding decision
as their final agreement. However, a few proceed
to arbitration or litigation to try and overturn the
adjudicator’s decision. Both processes are expensive
and entail revisiting the issues previously decided by
the adjudicator with all evidence laid bare under the
scrutiny of cross examination, expert opinion and the
tribunal.
Where there have been serial adjudications certain
issues may be separated and dealt with as preliminary
issues and in these cases getting an early decision on
the preliminary issues may lead to settlement.
Any challenge to an adjudicator’s decision should
only be considered after seeking both legal advice and
a sound contractual/commercial overview of the case.
Further information can be obtained by emailing
raycrabbe@rjc-consultants.co.uk. |