Newsletter No. 7

Readers of our last Newsletter may be interested to hear what happened with the Adjudication that one of our Client's had been pursuing. In that Adjudication we were pursuing an amount for Loss and Expense incurred because of delays caused to the project by the Employer. The Adjudicator's decision, with regard to the time element, was in our Client's favour: all but three weeks were reimbursable. The Adjudicator's Decision, with regard to the amount due, was also in our Client's favour. However, the amount awarded fell short of what we estimated would be recoverable. As several commentators on dispute resolution have stated, you can never predict what an independent third party will decide on any issue.

This Decision only helps to reinforce the advice in our last Newsletter: use your best endeavours to resolve all issues with your client, be he a Main Contractor or an Employer, as early as possible and in an amicable manner. Do not let the differences between you drag on, fester and affect your relationship.

Whether or not this ideal is possible, always keep records of the issues of differences between you. They may not be needed for Adjudication, but they could assist you settle on a higher figure with your client because of the quality of the information that you presented to him.

I attended a seminar recently, entitled How to Succeed in Adjudication. I went with a hope of finding something that would help us improve the level of recovery for any future clients that we help with Adjudication. The one item that was raised that would help future Adjudications was to place a greater degree of emphasis on statements of people like the site agent and/or site foreman, i.e. the people who were involved in the day-to-day running of the project. These statements, both formal and oral, would assist the Adjudicator understand the facts of the dispute much better. In line with this, give your site staff diaries and ask them to keep detailed notes of the day-to-day running of their projects.

Oral contracts were also discussed at this seminar. The decision in the case of RJT Consulting Engineers Ltd v. DM Engineering (Northern Ireland) Ltd was discussed in relation to this issue. According to one of the speakers, this decision came as a shock to many in the legal profession. I was rather at a loss to understand this comment: to have all the details of the contract in writing seemed the only sensible thing to do.

The only Adjudication that we have lost turned around this issue. This Adjudication took place between the first court decision being made on this case and the later decision that was made on Appeal. The Adjudicator, despite our arguments that he had no jurisdiction because it was a verbal contract, continued with his appointment. At the Hearing that was called, many of the answers to the questions raised by him could not be confirmed by either party with anything in writing. As intimated to him several times, this was the logical situation as it was a verbal contract. Having listened to the comments, both at this seminar and from other Adjudicators, I continue to believe that this particular Adjudicator got it wrong, from beginning to end. He remains on our black list of Adjudicators.

We hope that our readers Maximize Your Contractual Recovery on your construction projects.

If you wish us to consider any problem that may be of interest to those who read our Newsletter, please do not hesitate to contact us.

ACHIEVEMENTS |SERVICES | ENDORSEMENTS | C.V. | ENQUIRY

©   2003 GM Associates (QS) Ltd.

Website by