Construction analysis: The Technology and Construction Court (TCC) granted summary judgment enforcing a construction adjudicator’s award in favour of the claimant sub-contractor. It rejected the defendant contractor’s argument that the adjudicator had exceeded his jurisdiction by undertaking a true valuation of the payment application rather than determining a notified sum dispute. The court found that any threshold jurisdictional objection had been waived because the defendant had not reserved its position during the adjudication, and, in any event, objectively construed, the notice of adjudication encompassed a true valuation dispute. The court also rejected natural justice challenges concerning the burden of proof and the adjudicator’s treatment of a critical path analysis, finding no material unfairness.

Claim No. [insert claim number]. [IN THE HIGH COURT OF JUSTICE [BUSINESS AND PROPERTY DIVISION OR BUSINESS AND PROPERTY DIVISION IN [insert location]] Technology and Construction

Claim No. [insert claim number]. [IN THE HIGH COURT OF JUSTICE [BUSINESS AND PROPERTY COURTS DIVISION OR BUSINESS AND PROPERTY DIVISION IN [insert location]] Technology and Construction Court Between [insert

Construction analysis: The Outer House of the Court of Session enforced an adjudicator’s award of £113,767 in favour of the pursuer, Entexol. Lord Lake rejected the defender (Sked Construction)’s contention that the adjudicator had breached the rules of natural justice by concluding that ‘time was at large’, although neither party had advanced that case. Properly analysed, that conclusion merely followed from the adjudicator’s rejection of Sked’s asserted contractual completion date, an issue already before him. An adjudicator was not required to warn a party that its case might be rejected and invite an alternative case. A separate £10,000 claim remained unresolved because it raised a disputed factual issue.

Construction analysis: In Avanton v LUC, the Technology and Construction Court (TCC) refused a contractor's application to stay execution of a judgment enforcing an adjudicator's decision. The court applied established principles concerning a claimant's probable inability to repay an adjudication award and examined when a defendant's own inability to pay may justify a stay. Mr Justice Constable explained that the competing risks of financial prejudice must be assessed in all the circumstances, with enforcement ordinarily favoured where those risks are finely balanced.

Claim No. [insert claim number]. [IN THE HIGH COURT OF JUSTICE [BUSINESS AND PROPERTY DIVISION OR BUSINESS AND PROPERTY DIVISION IN [insert location]] Technology and Construction Court Between [insert

Produced in association with 4 Pump Court This Practice Note considers the possibility of using insolvency proceedings to enforce an adjudicator’s decision. For guidance on the ability of an insolvent party to pursue an adjudication, and enforce an adjudicator’s decision, see Practice Notes: The right to adjudicate—Restrictions and limitations on right to adjudicate and Adjudication—resisting enforcement using a stay of execution—Claimant in liquidation, administration or a CVA. Use of insolvency proceedings in adjudication enforcement Insolvency proceedings will rarely be the most efficient or appropriate means of enforcing the decision of an adjudicator. The Technology and Construction Court’s (TCC’s) enforcement procedures are specifically tailored for quick adjudication enforcement, and the test to be applied varies from that which is usually applied in insolvency proceedings. In Harlow & Milner v Linda Teasdale, the TCC noted (when considering costs incurred in bankruptcy proceedings which had since been withdrawn) that: • it was not easy to understand why the bankruptcy proceedings had been issued. The appropriate way of enforcing the adjudicator's decision was to issue enforcement proceedings in the

Construction analysis: The Technology and Construction Court (TCC) enforced an £8.73 million adjudication award in a dispute concerning negligent professional services, rejecting defences based on jurisdictional and natural justice challenges. The court found that the adjudicator had determined the dispute referred to him, notwithstanding that his analysis interwove breach, causation and valuation. It also considered that the adjudicator could rely on an assessment rejected by both parties because he had explained its potential relevance and invited submissions; natural justice did not require further consultation after those submissions. The court also rejected arguments based on inadequate reasons, and found that the decision should not be severed.

A process which gives creditors a right or security over heritable property owned by the debtor, either alone or following inhibition. The creditor must first have a decree or other relevant document of debt

This Practice Note considers the current position on adjudication for debt in Scottish civil proceedings under the Bankruptcy and Diligence etc (Scotland) Act 2007 (BD(S)A 2007). However, see Adjudication for debt—anticipated future developments, below. For guidance on: • other forms of diligence in Scottish civil procedure, see Practice Note: Enforcement in Scottish civil litigation which, in turn, links through to detailed guidance on a number of forms of diligence available in Scotland • the equivalent in England and Wales, see: Introduction to enforcement—overview which, as well as giving an overview of this topic, links through to more detailed guidance on various aspects of domestic enforcement in England and Wales • cross-border enforcement, see Practice Note: Cross-border enforcement—a guide for dispute resolution practitioners which, as well as giving an overview of this topic, links through to more detailed guidance on various aspects of cross-border enforcement Key: • BD(S)A 2007—Bankruptcy and Diligence etc (Scotland) Act 2007 • CJJA 1982—Civil Jurisdiction and Judgments Act 1982 • D(S)A 1987—Debtors (Scotland) Act 1987 Adjudication

Construction analysis: The Technology and Construction Court (TCC) took a commonsense, practical approach to interpreting a payment notice under the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) and Part II of the Scheme for Construction Contracts (the Scheme), holding that documents submitted by the payee were obviously identifiable as an interim application and set out the sum claimed as due and the basis on which such sum was calculated. The TCC also held that a payment notice will not be invalid if it requests a sum less than the amount stated as due. Where a payment notice contains an erroneous due date this would be a matter for the other party’s response and would not go to the validity of the application.

This Practice Note considers the timescales for an adjudication under the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) and the Scheme for Construction Contracts. In particular, it looks at adherence to the timetable, how time periods are calculated,whether tight timescales can give rise to a breach of natural justice, and the limitation period for bringing a challenge to an adjudication decision. The HGCRA 1996 provides specific timescales for the service of the Referral Notice and the adjudicator’s decision, but does not prescribe time periods for other steps in an adjudication. However, the power to set the timetable is within the adjudicator’s discretion, which will include setting a deadline for the Response and any other steps it considers necessary—see Practice Note: The adjudicator's powers, directions and duties. Adherence to the timetable The overriding principle of the adjudication process is that speed is given precedence over accuracy—what matters most is a quick decision, not necessarily a wholly accurate one. This principle is based on the recognition that cash flow is paramount during a construction project. The courts have consistently