Layngross
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Dr Derek Ross has recently updated his website at LayngRoss.com, and is intending to take a more active interest in Facebook, Linkedin and Twitter in the coming year.

Derek is a Past Master of the Worshipful Company of Arbitrators.  He is on the FIDIC President’s List of Adjudicators and the Irish Government's Panel of Construction Contract Adjudicators, amongst other panels.  He is a Chartered Arbitrator, Accredited Mediator & Conciliator, Registered Adjudicator and Dispute Board Member, who accepts domestic and international appointments as the neutral person in each of these construction dispute resolution disciplines.  He is also a Chartered Civil Engineer, well versed in resolving technical, contractual and quantum disputes in the construction industry.  

If you feel Dr Ross can assist you, please call him for a no obligation discussion on +44 1932 856463, or simply reply to this email with your details.

Below is an article he has written, which he hopes you will find of interest. 

 



GETTING IN FIRST

It is intriguing to read some of the more inventive arguments advanced in the Technology and Construction Court ('TCC') and to see the clear and logical manner in which they are often shot down by the judges.  One such example is the case of Kersfield Developments (Bridge Road) Limited v. Bray and Slaughter Limited  [2017] EWHC 15 (TCC).

It is now well established that a paying party who has failed to issue a valid payment or payless notice in respect of an interim account, and has been ordered by an adjudicator to pay the sum for which the working party has applied, has no further recourse to adjudication in respect of that particular interim account.   Due to cash flow difficulties such an adjudicator's decision created for Kersfield, it sought leave to commence an adjudication on the true value of the interim account on the basis of the adjudicator's power under paragraph 20 of the Scheme for Construction Contacts ('the Scheme'), which applied, to 'open up, revise and review any decision taken or any certificate given by any person referred to in the contract', which it claimed included payment and payless notices.  Unsurprising the judge dismissed the argument on the basis that a payment or payless notice is not a decision taken or a certificate given by any person referred to in the contract.

Case law to date on this topic appears to be confined to contracts where JCT conditions and/or the Scheme have applied.  Thus I have heard it asked: What in similar circumstances would the result have been if NEC3 contract conditions, which empower the adjudicator to 'review and revise any action or inaction of the Project Manager or Supervisor related to the dispute',  had applied?   Interesting question, but exactly the same answer in respect of interim accounts I suspect, as NEC3 expressly provides that 'The Project Manager corrects any wrongly assessed amount due in a later payment certificate.'   Thus, if the amount of the NEC3 working party's application is disputed, but nonetheless payable for want of a Project Manager's correcting payment certificate or payless notice, it would seem the parties have by prior agreement agreed to wait until the next payment round to correct any mistakes.

The paying party's biggest mistake however, apart from neglecting to serve its payless notice of course, is allowing the one adjudication that is allowed to be about the lack of notices rather than the proper value of the interim account.  No guarantee getting into adjudication first would have worked here, but always worth considering.


Dr Derek Ross

13 March 2017

 


 

 

Please Note: The foregoing article has been prepared by Dr Derek Ross for the general interest and benefit of readers.  It is not intended to be a definitive analysis of the law or of other matters discussed.  Neither does it create a client relationship between the recipient and Dr Ross.  Thus no liability is accepted in respect of any reliance placed on any statements made in the foregoing article.  Proper advice ought always to be taken before deciding to take, or not to take, action in respect of a specific issue.

 

© 2017 Dr Derek Ross & Layng Ross Construction Disputes Resolution.

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