Construction analysis: The Technology and Construction Court (TCC) enforced an adjudicator’s decision, requiring payment of the £650,000 balance omitted from an interim certificate, and refused a stay of execution. It held that the adjudicator had not exceeded his jurisdiction by considering the parties’ treatment of the advance payments in earlier certificates, because that material formed part of the arguments deployed in resolving the referred dispute. Although the adjudicator had gone further than necessary by finding a breach of contract, the parties had been invited to address the point and it did not affect the relief awarded. A stay was unjustified because the reimbursement conditions had not been satisfied and no insolvency, dissipation or risk of non-recovery was alleged.

Construction analysis: The Technology and Construction Court (TCC) held that an adjudicator has jurisdiction to make a monetary award in favour of a responding party, where the adjudicator has determined that a notified sum is due to that responding party as part of its determination of the dispute referred to adjudication. The TCC enforced the adjudicator’s decision to award the responding party in the adjudication the notified sum.

Note: • this Practice Note gives specific guidance on matters proceeding in the Technology and Construction Court (TCC) under the provisions set out in CPR 60, CPR PD 60 and the TCC Guide. As these provisions are additional to the general provisions set out elsewhere in the CPR, this Practice Note should be read in conjunction with general guidance on preparing for and attending trial including that in Trial—overview which, in turn, links through to detailed guidance on specific aspects of preparing for and attending trials • shorter and flexible trials schemes—claims started on or after 1 October 2015 in the TCC may be suitable for and/or be subject to one or both of the schemes operating under CPR PD 57AB, namely the shorter trials scheme and/or the flexible trials scheme. For more information on these schemes, see Practice Notes: Business and Property Division—shorter trials scheme and Business and Property Division—flexible trials scheme • electronic working—for information on electronic working in the TCC, see Practice Note: TCC—starting a claim—High Court or County Court?—Electronic working and filing of documents • multi-track—all TCC

Construction analysis: Antony Smith, partner and chairman, and Cameron Baker, solicitor at Beale & Company Solicitors LLP, provide an overview of the most common process of adjudication in Australia, following the introduction of the Building and Construction Industry (Security of Payment) Act 2021 (WA), which focusses on a progress claim for payment (Payment Claim) submitted by a contractor and the corresponding assessment by the party the claim was submitted to. Further considering how this compares with the process in the UK under the Housing Grants, Construction and Regeneration Act 1996 (UK).

Produced in association with 4 Pump Court This Practice Note looks at the power of an adjudicator to award interest, and the various grounds upon which a party may claim interest in an adjudication. General principles Unlike in court proceedings, there is no statutory discretion conferred on an adjudicator to award interest on damages or debt, so a referring party must identify a basis for claiming interest. A referring party should explicitly claim interest (and identify the basis for its interest claim) in its Notice of Adjudication and Referral Notice to ensure that interest is validly claimed and within the adjudicator’s jurisdiction to award. The claim should include a rate of interest and details of whether the interest claimed is simple or compound and, if compound, the appropriate rests. There are a number of possible bases upon which an adjudicator can award interest: • where it is a 'matter in dispute' (eg interest is claimed under the contract or as damages) which has been referred to the adjudicator • the parties have agreed that the adjudicator has jurisdiction

Construction analysis: The Technology and Construction Court (TCC) enforced an adjudicator’s decision in favour of a claimant in administration, subject to a stay of execution. Though the defendant maintained a counterclaim against the claimant, and the claimant had offered no security in respect of that counterclaim, the court was not satisfied that the counterclaim was strong enough to justify an outright refusal to enforce.

This Practice Note considers the requirements for a dispute to be capable of referral to adjudication. In summary, a dispute must: • have crystallised—such that the responding party has had an opportunity to consider the claim and reject it prior to a Notice of Adjudication being served • be a single dispute (although it may involve multiple issues) • not have already been determined (in earlier adjudication, court or arbitration proceedings) or settled For guidance on the entitlement to adjudicate generally, see Practice Note: The right to adjudicate. Crystallised dispute If no dispute has crystallised, there is nothing that can be referred to the adjudicator under HGCRA 1996, s 108(1), and the adjudicator will therefore lack jurisdiction. The court set out in Fastrack v Morrison what, at a bare minimum, was necessary for a dispute to have crystallised: 'A dispute can only arise once the subject-matter of the claim, issue or other matter has been brought to the attention of the opposing party and that party has had an opportunity of considering and admitting, modifying or rejecting

This Practice Note sets out key cases concerning whether there is a dispute capable of referral to adjudication—including whether the dispute has crystallised, is a single dispute, or has been previously determined or settled. We recommend first referring to Practice Note: Adjudication—is there a ‘dispute’?, which explains the relevant principles. Crystallised dispute For guidance on the requirement that a dispute must have crystallised, see Practice Note: Adjudication—is there a ‘dispute’? (Crystallised dispute). Guiding principles Case law setting out general guidelines or summaries of the law includes the following: The seven guiding propositions on what a crystallised dispute encompasses were set out by the court in AMEC v Secretary for Transport: '1. The word “dispute” which occurs in many arbitration clauses and also in s 108 of the Housing Grants Act should be given its normal meaning. It does not have some special or unusual meaning conferred upon it by lawyers. 2. Despite the simple meaning of the word “dispute”, there has been much litigation over the years as to whether or not disputes existed in particular

This Practice Note looks at preventing enforcement of an adjudication decision by obtaining a stay of execution. If a stay is ordered, then the court will still grant summary judgment to enforce the adjudicator’s decision but it will also stay the enforcement of that judgment (that is to say, effectively ‘pause’ the obligation to make payment). This Practice Note considers the reasons why a stay might be ordered, the key principles that the court will have regard to when deciding whether to grant one, partial stays, and whether there needs to be an arguable case that the adjudication decision was wrong. For guidance on other possible methods of resisting enforcement (eg using set off or seeking a declaration), see the Adjudication enforcement and challenges subtopic. What grounds might justify a stay of execution being ordered? A stay of execution of summary judgment proceedings enforcing an adjudicator’s decision will rarely be given. In terms of CPR 83.7, the court may stay execution of a judgment or order, absolutely or for any period, and subject

Produced in association with 4 Pump Court The courts have repeatedly held (see eg Ferson Contractors v Levolux) that the policy behind the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) is that adjudication decisions should be enforced—to allow parties to resist enforcement by raising set-off arguments would frustrate that purpose. As such, a party who is ordered to pay money in an adjudicator’s decision must pay in full without deduction or set-off. Except in very limited circumstances, set out below, a separate contractual entitlement (such as to liquidated and ascertained damages (LADs)) cannot be used to resist enforcement of an adjudication decision. Parties seeking to set-off against an adjudicator's decision therefore face an uphill struggle. The court in Thameside Construction v Stevens said that there were broadly two exceptions to the usual rule: • there was a contractual right to set-off, or • there was a declaratory type decision by the adjudicator (for instance in relation to an entitlement in principle to LADs) that left room within the decision itself for a set-off

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. For a Precedent Referral Notice, see: Referral Notice for an adjudication. What is the Referral Notice? Once a Notice of Adjudication has been given, and a person has been appointed to act as an adjudicator, the dispute must be formally referred to the adjudicator. The Referral Notice is the referral of the dispute in writing to the adjudicator, and its purpose is to set out clearly and concisely the referring party’s case. It is, effectively, the referring party’s pleadings, evidence and submissions all rolled into one. The referring party should bear in mind that the Referral Notice is intended to be the whole of its case, and not just the opening shot. There is no guarantee that it will be entitled to put in

Produced in association with 4 Pump Court This Practice Note looks at the responding party’s defence to a Referral Notice in an adjudication—typically called the Response. The purpose of the Response is to set out clearly and concisely the responding party’s case—effectively comprising its pleadings, evidence, opening and closing submissions all rolled into one. This Practice Note considers the entitlement/requirement to serve a Response, the deadline for doing so, and issues that can be included in a Response, as well as providing practical tips for drafting it. Other helpful summaries on issues which may be relevant are available in Checklists: Key issues to consider on receipt of a Notice of Adjudication and Key issues to consider when preparing an Adjudication Response. Entitlement to serve a Response The Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) and the Scheme for Construction Contracts do not expressly provide for any response from the responding party to either the Notice of Adjudication or the Referral Notice. However, the adjudicator has a general power to issue directions relating to the conduct of the adjudication