Geoff Brewer is the Head of the consultancy practice Brewer Consulting, and is a frequent and well-known speaker at seminars and workshops on construction law. In recent years he has published over two hundred and fifty articles and papers on construction law and management issues. He has now been writing the weekly legal column for Contract Journal for the past four years, which is widely read and respected as a reliable and authoritative source for layers and construction professionals on construction law issues.

Geoff gave our Members an excellent explanation of a number of recent construction law cases covering both arbitration and adjudication and these are summarised below:

The employer’s failure to comply with the notice requirements of defects liability provisions, whether by refusing to allow the contractor to carry out the repairs or by failing to give notice of the defects, limits the amount of damages which it is entitled to recover.

However, it should be noted that defects liability is in addition to common law rights and an employer has six years from practical completion to sue for breach of contract with regard to design faults or poor materials.

In assessing the ‘reasonableness’ of a rate or price in contract bills for extended or varied work, regard may be had to whether the work is similar in character or conditions, but not to the intrinsic profitability or otherwise of the rate or price.

An ascertainment of contractual loss and expense requires judgement, and may involve comparison of the total costs incurred with the costs which might have been incurred but for the delay and disruption.

The existence of a partnering charter may influence decisions as to whether essential terms are present for the formation of a Contract and may further influence an arbitrator or court in determining whether performance has met the requirements of the Contract.

In assessing a claim for an extension of time, an architect is entitled to take into account matters which he considers delayed the works but which are not relevant events.

Adjudicator’s decisions are binding and enforceable pending final resolution of the dispute by arbitration or litigation.

An adjudicator’s jurisdiction can be challenged where there is a failure to establish on clear evidence a relevant contract.

On a challenge to jurisdiction the adjudicator should investigate and proceed accordingly, but he cannot rule upon his own jurisdiction.

A settlement agreement will normally fall beyond the ambit of the Construction Act, and accordingly an adjudicator will not have jurisdiction to deal with disputes which flow from the agreement.

Even if the contract has been terminated, the matters referred to the adjudicator will remain disputes under the contract.

It does not automatically follow that a sub contract for ‘construction operations’? will be excluded from the Act if the main contract is for ‘excluded’ works.

An adjudicator may not award costs to a successful party unless the parties have agreed that he should do so.

The court will enforce an adjudicator’s decision even where it is plainly based upon an error.

A term may be implied into the adjudicator’s agreement whereby the parties give the adjudicator the power to correct manifest errors or omissions, or clarify or remove ambiguities in the decision. The power may be exercised on the initiative of the adjudicator or upon the application of one of the parties.

A set off raised after the date of the referral will not prevent enforcement of the adjudicator’?s decision in full.

Dispute

It is not always necessary for the full details of the quantification of a dispute to have been referred to the respondent prior to the adjudication.

The determination of a final account will generally be regarded as a different dispute to the determination of the last interim payment.

Adjudication may be commenced ‘at any time’, but an adjudicator’s decision will be enforceable notwithstanding the prior commencement of legal proceedings concerning the same issues.