Adjudication for architects and engineers John Timpson and Brian Totterdill Legal Notes by Roger Dyer Published by Thomas Telford Ltd, 1 Heron Quay, London E14 4JD. URL:http://www.t-telford.co.uk Distributors for Thomas Telford books are USA: ASCE Press, 1801 Alexander Bell Drive, Reston, VA 20191-4400 Japan: Maruzen Co. Ltd, Book Department, 3±10 Nihonbashi 2-chome, Chuo-ku, Tokyo 103 Australia: DA Books and Journals, 648 Whitehorse Road, Mitcham 3132, Victoria First published 1999 Appendices 1±5 are reproduced by kind permission of Her Majesty's Stationery Office. Appendix 10 is reproduced by kind permission of The Joint Contracts Tribunal (JCT). Appendix 11 is reproduced by kind permission of The Construction Industry Council (CIC). A catalogue record for this book is available from the British Library. ISBN: 0 7277 2672 2 # Main text: John Timpson and Brian Totterdill, 1999 # Appendices 1±5: Crown copyright; Appendix 10: The Joint Contracts Tribunal; Appendix 11: The Construction Industry Council. All rights, including translation, reserved. Except for fair copying, no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior written permission of the Books Publisher, Thomas Telford Ltd, 1 Heron Quay, London E14 4JD. The book is published on the understanding that the author is/authors are solely responsible for the statements made and opinions expressed in it and that its publication does not necessarily imply that such statements and/or opinions are or reflect the views or opinions of the publishers. Typeset by Gray Publishing, Tunbridge Wells. Printed and bound in Great Britain by The Cromwell Press, Trowbridge, Wilts. Foreword I count it a privilege to have been invited to write a foreword to a new book, particularly one whose authors are such outstanding practitioners in their own fields. Adjudication has been a feature of construction contracts, particularly subcontracts, for at least 20 years; generally, it has been confined to dealing with disputes concerning set-off, but, in more recent years, has been used less and less as ways were found to avoid implementing adjudicators' decisions. All that has changed; following the report of Sir Michael Latham, Constructing the team, Government was persuaded that primary legislation was required to give all parties to construction contracts a statutory right to have disputes decided by adjudication, which was to be a rapid and relatively inexpensive process in all cases. That legislation (the Housing Grants, Construction and Regeneration Act 1996) is now in force and disputes are being referred to adjudication. This book, therefore, could not be more timely. There are many ideas about what adjudication under the Act is and should be, and, undoubtedly, the process will develop and its practitioners will perfect their own expertise; nevertheless, the need for informed guidance is paramount. The authorsÐan architect, an engineer and a barristerÐall have extensive experience as arbitrators, and although adjudication is not arbitration, the techniques and principles of deciding only on the evidence adduced and respecting the principles of natural justice as far as possible are common to any process of third party intervention. iv | Adjudication for architects and engineers Written in an easy-to-read style, this book is comprehensive yet easily manageable; learned in the true sense. The combined wealth of experience of the authors is apparent on every page, spiced with sound legal advice but tempered by lessons learned in long years of practice. The title of the book implies that this text is relevant only to architects and engineers. Nothing could be further from the truth; this book should be an essential companion to all adjudicators, construction professionals, employers and their advisers, contractors and subcontractors, and lawyers involved in adjudication. The book will also be invaluable in the training and continuing professional development of adjudicators. I have no hesitation in commending this book to a wide readership; I know it will find a welcome spot on my own shelves and, more importantly, on my desk as an essential reference. Harold Crowter Chairman, Chartered Institute of Arbitrators Authors' note The adjudication process which is discussed in this book is a new process. Standard forms of contract have been amended and rules have been published. As experience is gained, the published amendments and rules are being revised and additional documents are being published. The authors had to draw the line between delaying the publication of this book in order to wait for further published documents or publishing the book to cover the information which was already available. For this reason, the reader must check the current versions of any contracts or rules, or the Act itself, to see whether or not further revisions have been made since the date the book was passed for publication. Contents Glossary xiii 1 Introduction 1 What is Adjudication? 1 The format of this book 8 How to use this book 8 2 Background and development of dispute resolution in construction 11 Excessive time and cost expended on dispute resolution 11 Dispute resolution systems generally: non-binding or imposed 13 Arbitration 14 Expert resolution and the move away from the impartial contract administrator 15 Adjudication 15 Adjudication rules 17 3 Resolving disputes by Adjudication 19 Stage 1 ± before the Adjudication 19 Stage 2 ± the notice of Adjudication 26 Stage 3 ± the selection and appointment of the Adjudicator 27 Stage 4 ± referral of the dispute to the Adjudicator 32 Stage 5 ± conduct of the Adjudication 36 viii | Adjudication for architects and engineers 4 The Adjudicator's decision 53 Reaching the decision 53 The Adjudicator's decision 56 The purpose of the decision 57 Decisions on liability 58 Decisions on time 59 Decisions on money 61 Decisions on other matters 62 The content and form of the decision 62 The contract between the Parties 63 The Adjudicator's Contract 63 The scope of the issues 63 The events which led up to the Adjudication 64 The actions taken by the Adjudicator 65 Information on which the decision was based 65 Conclusions on points of dispute 66 Reasons 66 Calculations 67 The Decision 68 After the Decision 68 Chapter 4. Appendix: skeleton for Adjudicator's decision 69 5 The Act 73 Section 104: Construction Contracts 74 Section 105: the meaning of `Construction Operations' 75 Section 106: residential occupiers 76 Section 107: agreements in writing 76 Section 108: Adjudication 77 Supplementary provisions 78 Section 115: service of notices 79 Section 116: time periods 79 Section 117: Crown application 79 Enforcement 79 What happens when there is only partial compliance? 80 Comments on non-conforming situations and witness examination 80 Contents | ix 6 The scheme 85 Notice of intention to seek Adjudication 85 Powers of the Adjudicator 87 Adjudicator's Decision 89 Effects of Decision 89 Comments 90 7 The ICE Conditions of Contract 93 Introduction 93 The application of Adjudication to the ICE Contracts 93 The Adjudication provisions in the ICE Contracts 98 The ICE Adjudication Procedure (1997) 106 The `Blue Form' of Subcontract 122 8 The Engineering and Construction Contract and other NEC Contracts 127 Introduction 127 The application of Adjudication to the NEC Contracts 127 The amended Adjudication clauses in the Engineering and Construction Contract 129 The Engineering and Construction Subcontract 139 The Professional Services Contract 140 The Adjudicator's Contract 141 9 JCT Contracts 147 General introduction to JCT Contracts and Adjudication in JCT 80 147 Settlement of disputes ± Adjudication ± arrangements in JCT 80 (Amendment 18) 150 JCT 80 Standard Form of Building Contract (Private with Quantities) 157 Further drawings or details 162 JCT Agreement for minor building works incorporating amendments MW1±MW10, 1996 174 x | Adjudication for architects and engineers JCT standard form of contract with Contractor's design 1981 with supplementary provisions issued February 1988 for Adjudication 181 JCT Intermediate Form of Contract 1984 incorporating Amendments Nos 1±7 Inclusive and 9 189 Condition 1: the intentions of the Parties 189 Condition 2: possession and completion 190 Condition 3: control of the Works 191 Condition 4: payment 192 Condition 5: statutory obligations, etc. 193 Condition 6: injury, damage and insurance 193 Condition 7: determination 193 Condition 8: interpretation, etc. 194 Condition 9: Settlement of disputes ± Arbitration 194 10 `Other contracts' 195 The ACA Form of Building Agreement, Second Edition 1984 195 JCT 1987 Management Contract: Works Contract 1 and Works Contract 2 196 11 Consultant's contracts 197 Introduction 197 Definition of performance and limit of liability 201 Categories of disputes 201 The importance of dispute avoidance 204 The Architects Registration Board 205 Checklist for activities in consultant/employer contracts 205 12 Legal notes 209 The appointment 209 Powers and duties of the Adjudicator 214 Set-off 218 Legal advice for the Adjudicator 219 Leading cases 221 Time limits 224 Contents | xi Reasons 224 Enforcement and remedies 226 Adjudicator's liability 229 Payment provisions 230 Conclusions 232 Cases referred to 233 Bibliography 235 Appendices Appendix 1 Part II: Housing Grants, Construction and Regeneration Act 1996 237 Appendix 2 The Scheme for Construction Contracts (England and Wales) Regulations