4 Pump Court

This Practice Note considers the availability and use of declarations under CPR 8 in relation to adjudication proceedings. It looks at the various stages at which a declaration may be sought—before an adjudication has been commenced, while one is on foot and after an adjudication decision has been given. Such proceedings are a form of Technology and Construction Court ‘adjudication business’.

This Practice Note looks at preventing enforcement of an adjudication decision by obtaining a stay of execution. It considers the key principles that the court will have regard to when determining whether to grant a stay and assessing the judgment creditor’s financial position, including whether it is in liquidation, administration, subject to a winding up petition, or in a company voluntary arrangement (CVA). This Practice Note also discusses stays where there is a risk of dissipation of the judgment sum, hardship for the paying party or an imminent resolution of related proceedings. Finally, it looks at whether there needs to be an arguable case that the decision was wrong (ie is there a merits-based test), and partial stays.

This Practice Note explains what a Referral Notice (sometimes referred to simply as a ‘Referral’) is and sets out what it should contain. It also provides practical tips for drafting an effective Referral Notice, and considers when the Referral Notice must be served and the consequences of failing to meet the deadline for service.

This Practice Note sets out the key principles when considering an adjudicator’s fees and expenses, as well as their potential liability (eg if they breach the rules of natural justice or act outside their jurisdiction). This Note covers the basis of the adjudicator’s entitlement to payment, including any requirement as to reasonableness of their fees, as well as their ability to apportion liability for their fees, joint and severable liability of the parties, and what happens if the adjudicator resigns or has their appointment revoked.

This Practice Note considers the pros and cons of commencing an adjudication to resolve a construction dispute, noting the advantages and disadvantages compared to court proceedings or arbitration.

This Practice Note sets out the principles of natural justice in the context of adjudication, including the right to a fair hearing. The effect of a breach of natural justice on an adjudication decision is explained as well as what constitutes a waiver of such a breach. The issues of conflict of interest and bias of the adjudicator are also explored.

This Practice Note identifies some of the key differences between adjudication and litigation, arbitration, mediation and expert determination.

This Practice Note looks at enforcement of an adjudication decision as provided for in section 9 of the Technology and Construction Court (TCC) Guide, including recoverability of the legal costs incurred in doing so. This generally involves a Part 7 claim and summary judgment application, although there may need to be a full (albeit expedited) trial. This Practice Note also considers the ability to enforce a decision by seeking a mandatory injunction and the effect of a foreign jurisdiction or governing law clause on adjudication enforcement proceedings. Adjudication enforcement is a form of TCC ‘adjudication business’.

This Practice Note considers the ability of parties to raise fraud allegations during an adjudication, when fraud allegations will permit a party to resist enforcement of an adjudication decision, and fraud in the adjudication process itself. It also considers the relevance of the timing of the discovery of fraud.

This Practice Note list the grounds on which a jurisdictional challenge may be brought in respect of an adjudication—including that there is no construction contract, the dispute has not crystallised, the dispute has settled, there is no contract between the parties, the adjudicator was not validly appointed or there is already a decision dealing with the same dispute.

This Practice Note addresses whether a jurisdictional challenge can be made in an adjudication and, if so, when the challenge to the adjudicator’s jurisdiction should take place and how to deal with it. It also looks at waiver/reservation of jurisdiction objections, approbation and reprobation (asserting two inconsistent positions), procedures in the Technology and Construction Court relevant to jurisdictional challenges (applications for declarations etc), and whether an adjudication can be stayed (stopped) pending the challenge.

This Practice Note explains the different situations where an adjudicator may resign, which can be mandatory (eg because the adjudication rules/contract provide that they must) or voluntary (eg due to illness), and looks at the procedure for resignation.

This Practice Note provides an overview of the role of the court prior to and during an adjudication (referred to as ‘adjudication business’ in the Technology and Construction Court Guide), including why and how a party to an adjudication might seek relief from the court during an adjudication (or even prior to one commencing). This includes seeking a Part 8 declaration or injunction, as well as obtaining a stay of court or arbitral proceedings in order for an adjudication to take place.

This Practice Note considers whether part of an adjudication decision can be severed, so that only part of it is enforced by the court. Severance, which normally arises during enforcement proceedings, may be ordered where part of the decision is made without jurisdiction, in breach of natural justice and/or is determined by a court to be flawed (eg in Part 8 proceedings).

This Practice Note explains the adjudicator’s jurisdiction to decide a dispute in an adjudication. It looks at how the jurisdiction of adjudicators is derived, their ability to make a binding decision on whether they have jurisdiction, and the impact (if any) of mistakes of fact, errors of law or procedural errors on jurisdiction.

This Practice Note looks at the entitlement of a party to make submissions in an adjudication after the Response (eg a Reply, Rejoinder or Surrejoinder). It also sets out the purpose of additional submissions, practical tips and considerations for drafting them, and considers whether they may include new arguments.

This Practice Note considers when the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) applies, including the meaning of construction contract and the meaning of construction operations (and the issue of hybrid contracts). It also looks at the various exclusions, including the exclusion orders, residential occupier exception and territorial limitations, as well as the ‘in writing’ requirement for contracts entered into before 1 October 2011.

This Precedent is a ‘Scott Schedule’ which can be used in relation to damages and other claims in order to set out the key issues between the parties in a construction dispute.

This Precedent is a ‘Scott Schedule’ which can be used to set out the key issues between the parties in relation to a construction dispute regarding defects in the works.

This Precedent is a ‘Scott Schedule’ which can be used to set out the key issues between the parties in relation to a construction dispute regarding delay to completion of the works.