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High Court Backing given to enforcement of adjudication awards.

24th October 2016 by Rob Kelly

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Adjudication is meant to be a swift and economical way to resolve contractual disputes in the construction industry, however this isn’t always the case.

Take AMD Environmental Ltd v Cumberland Construction Company Ltd [2016] EWHC 285 (TCC) for example.

Cumberland Construction had engaged AMD Environmental to carry out mechanical and electrical work at the Hilton Hotel in Park Lane, London.  Cumberland disputed AMD’s final bill and the dispute was referred to an adjudicator.  He ruled in favour of AMD and awarded it £77,993, plus VAT and interest.  AMD then launched proceedings to enforce the award.

Cumberland challenged the adjudicator’s decision on a number of grounds:

  • That the statutory adjudication regime did not apply because the subcontract was not in writing.
  • That the dispute had not crystallised by the date of AMD’s notice of adjudication.
  • That elements of the procedure breached rules of natural justice because AMD had provided new information to the adjudicator during the adjudication which had not previously been provided to Cumberland.

The court rejected all of Cumberland’s arguments and ordered that the adjudicator’s decision be enforced.

The court will typically award interest at between 4% and 5% but in this case Cumberland was ordered to pay interest on the adjudicator’s award at the higher rate of 6% because the adjudication decision should have been honoured some time ago and the arguments in support of Cumberland’s position were “hopeless”.  The court also ordered Cumberland to pay AMD’s costs on the more generous indemnity basis.

This judgment illustrates the court’s concern that too many adjudicators’ decisions are being challenged without merit and has laid down a marker that parties who pursue such cases will be heavily financially penalised.

If you would like any further information regarding dispute matters please contact Rob Kelly on 01202 755217.

This article provides information and comments on legal issues and developments of interest.  The contents of this article do not constitute legal advice, is not a comprehensive treatment of the subject matter covered, and should not be relied on as such.  Legal advice should be sought about your specific circumstances before taking any action with respect to the matters discussed.

 

Rob Kelly

Senior Associate — Dispute Resolution

Direct dial: 01202 377871

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Rob Kelly
  • “Rob Kelly has been absolutely exceptional in resolving this litigation and so thorough in everything and basically gave the opposition a masterclass of his work that he is so good at.”

    Paul Jeffcoate - Contentious Probate Client

  • “I have had the pleasure of working with several members of the team at Laceys regularly over a period of years. I found Rob Kelly in particular, who worked on a successful litigation case for me over a period of several years to be outstanding in all aspects of the work he undertook, and the manner in which he did it. I now consider him a friend. I would not - and have not - hesitated to recommend Laceys to my family and friends, and continue to use them for all legal matters.”

    Dan Collins

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    Mehdi Vahdati, Director and Proprietor - Indian Ocean (Bournemouth) Limited

  • “A case that was initially very straightforward became difficult and, for me, very frustrating. Rob Kelly's calm, lucid and very professional advice and planning were invaluable and led to a good outcome.”

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    Sunseeker London Limited

  • “I've worked with a fair few lawyers over the years and Rob Kelly is the most on the ball and efficient lawyers I've ever come across. I'm looking forward to working together for many years to come.”

    Roger Woodall CEO - Diamond Sporting Group

Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.

Contentious wills, probate and trusts

More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years.  He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.

Rob’s practice embraces:

  • Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
  • Disappointed beneficiary claims
  • Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
  • Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
  • Proprietary estoppel claims
  • Disputes about the proper construction, and rectification, of wills
  • Caveats
  • Professional liability claims arising from the preparation of wills and trusts and the administration of estates

He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.

Property disputes

The other side of Rob’s practice is contentious property work.  This embraces:

  • Residential and commercial landlord and tenant disputes
  • Disrepairs
  • Repairing covenants
  • Possession claims
  • Lease termination and lease forfeiture
  • Dilapidations
  • Service charge disputes
  • Interpretation and enforcement of leasehold covenants

Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.

Rob is an Associate Member of the Chartered Institute of Legal Executives.  He holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006, was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice, and is a member of the Civil Mediation Council.

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