EG5113 Contract Law In Construction System : Essay Fountain

Question:

This assignment requires further reading and research to be able to interpret the laws that are relevant to the question, with particular reference to renowned cited cases, other than the case in the question. You will need to discuss Contract Law in Construction at all times, then trawling the internet using search engines can be very misleading, so it is suggested that you use the standard texts on the topic as listed in the suggested reading provided at the end of this brief. The use of unauthoritative websites, especially from overseas, will be penalised.
 
Your essay needs to be structured, organised into paragraphs that flow logically.  The work needs to be in your own words with quotes no more than a single sentence. Whole sections which are found (by Turnitin) to have been ‘cut and pasted’ from elsewhere will attract a penalty. The style of your work must not be didactic or generic, which can be achieved by concentrating on the scenario provided.
 
 

Answer:

Introduction:

The case is based on the adjudication process of adjudicator and the Court for proper adjudication process has proposed certain rules. The principle of natural justice has been established in this case. Further, the rules of professional negligence have been mentioned in this case. In this report, the provision on hourly payment of the adjudicator has been discussed along with detailed discussion on quantum and liability has been mentioned. It is a general rule of adjudication that the maxim of Audi Alterem Partem (each party should get the right to being heard) should be maintained in each case (Thomas and Wright 2016). It has been established in this case. The court has observed that sufficient time should be given to the parties.

Discussion:

A professional contract has been made in between Waterman Partnership and London & Amsterdam Properties Ltd. However, London & Amsterdam Properties Ltd has made allegation against Waterman that they had not provide any design information to them within time and the company has to suffer loss for unwanted delay. An adjudicator has been appointed to resolve the dispute. However, the adjudicator, after conducted the hearing, charged Waterman with certain sum of money and ordered them to pay him on hourly base. Waterman has opposed the decision of adjudicator and made a plea before the court (Adjudication.co.uk 2018).

Waterman Partnership has certain grounds of opposition against the decision of the adjudicator. According to them, the matter should be based on the terms of the contract agreement made between both the parties; however, the referral did not maintained all the provisions of the contract. Certain provisions of the natural justice have been violated in this case and enough time and opportunities have not given to Waterman. It was stated by Waterman that the adjudicator has been appointed on different terms and this is against the terms of the company referral. It has been further alleged by the company that all the decision taken by the adjudicator is invalid and he has no right to take such decision. The company has opposed the hourly payment off adjudicator. Further, it has been stated by them that the adjudicator has not maintained the provisions of paragraph 25 of the terms. Regarding the natural justice, Waterman alleged that they did not get enough time for producing documents in their favor and London & Amsterdam Properties Ltd has not given them all the required documents and the adjudicator has pronounced the judgment without considering the same.

However, the observations made by the court in this case were important in nature. The court was rightly observed that adjudicator has all the rights to decide the method of getting payment from the parties and they can charge on hourly basis. However, the rate of the amount should be reasonable and sensible in nature. There is no provision in law that can make the hourly payment as unlawful. Further, the court has been notified that the adjudicator has found that the referral page exceeds the highest limit (maximum 20 pages) as the pages of the referral exceed 1000 pages. According to Court, the observation made by the adjudicator was correct and it was suggested by court to take the summary of the case (17 pages) as a matter of concern.

It has also been stated by the company Waterman that there is no dispute at all against which London & Amsterdam Properties Ltd has filed the case and approached before adjudicators. Therefore, the burden to prove the validity of the case has been transferred to London & Amsterdam Properties Ltd by Waterman. However, Court has observed that in Halki Shipping Corp v Sopex Oils Ltd [1998] it has been stated that if any party has denied a claim or if any party does not pay any certain amount, it will be considered as dispute. In this case, if Waterman has maintained the quantum then also they will be held liable on the liability ground, as they had denied paying the amount decided by the adjudicator.

 

However, the scope of the natural justice has been correctly observed by the court. According to their view, it is the fundamental object of natural justice that each party will get equal opportunities to place their own submission before the adjudicator or before the appropriate authorities. If the principle of fair hearing will not be maintained, the same will be considered as a breach of natural justice. It has been observed by the court that Waterman had asked for certain documents from London & Amsterdam Properties Ltd. (LAP) and LAP has providing only a part of the required document and therefore, the submission made by Waterman become time worthy. In the view of Judge Wilcox, the adjudicator has failed to observe the same and passed decision against Wilcox. It has also been notified by the court that the way the adjudicator has handled the evidences were not according to law. Further, all the observation made by the adjudicator based on the partial evidence that is he had considered the evidence submitted by LAP, but did not give much time to Waterman to submit their points of view. Therefore, the court observed that Waterman has not been given much opportunity to adduce their evidences.

It was also alleged by Waterman that the adjudicator had prior information about the subject matter of the case and this goes against the policy of the contract made in between the two companies. According to Waterman, prior knowledge on the subject matter goes against the policy of the natural justice. However, it has been observed by the court that having prior knowledge or information on the subject is not against the law, but the adjudicator should have to inform about this to all the parties before starting the session. However, the adjudicator had not maintained this in this case. Further, in case the adjudicator entered into any confidential information, he should have to inform the parties regarding the same. This has also not been mentioned b y the adjudicator in this case. However, in this case, adjudicator has not disclosed any confidential information and therefore, it can be stated that the step taken against the adjudicator is pointless.

The provisions of the Housing Grants Construction and Regeneration Act 1996 (HGCRA 1996) and Scheme for Construction Contracts (England and Wales) Regulations 1998 will apply in this case (Blake, Browne and Sime 2016). According to Macob Civil Engineering v Morrison Construction, the decision of the adjudicator is binding until the dispute has been resolved. It has further been observed in this case that if the parties are not satisfied by the decision of the adjudicator and could not follow the decision made by the adjudicator, it will come under the definition of dispute. The award given by the adjudicator is enforceable in nature. In the case of CH2M Hill Australia PTY Ltd v ABB Australia Pty Ltd, it was alleged that the adjudicator has failed to perform the duty critically and does not follow the rules of the construction contracts (Adriaanse 2016). It was held in that case that the adjudicator has failed to provide any reason for the decisions taken by him. This is considered as the abuse of law and Court has decided that the decision of the judge comes under the purview of jurisdictional error.

Conclusion:

Therefore, it has been observed in this case that certain rules have been discussed by the court regarding the adjudication power of the adjudicator. It has been observed that the adjudicator should have to follow the provisions of the construction contract and certain limits have been imposed on him (Menkel-Meadow 2015). He should have to act impartially. He has to give all the parties equal rights and opportunities so that they can represent them properly. He should handle all the evidence in effective manner and in case of any confidential matter; he has to inform all the parties. It is the duty of the adjudicators to provide reason for the decision and he should heard both thee parties before coming to a conclusion. However, it has been prescribed by the court in this case that the decision made by the adjudicator is mandatory in nature and the parties should have to follow the same until the dispute has been resolved.

 

Reference:

Adjudication.co.uk – London & Amsterdam Properties Ltd v Waterman [2003] EWHC 3059 – Adjudicator Nominating, Services and Information. (2018). Adjudication.co.uk. Retrieved 25 March 2018, from https://www.adjudication.co.uk/archive/view/case/808/london_&_amsterdam_properties_ltd_v_waterman_%5B2003%5D_ewhc_3059

Adriaanse, M.J., 2016. Construction contract law. Palgrave Macmillan.

Akintoye, A., Renukappa, S. and Lal, H., 2014. Developments in the United Kingdom dispute resolution process. Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, 7(1), p.A4514004.

Blake, S.H., Browne, J. and Sime, S., 2016. A practical approach to alternative dispute resolution. Oxford University Press.

Blake, S.H., Browne, J. and Sime, S., 2016. A practical approach to alternative dispute resolution. Oxford University Press.

Bult, A.K., Halligan, D.W., Pray, J. and Zack Jr, J.G., 2016. Dispute Avoidance and Alternative Dispute Resolution. In Construction Contract Claims, Changes, and Dispute Resolution (pp. 347-385).

Burr, A. ed., 2017. Delay and Disruption in Construction Contracts: First Supplement. Taylor & Francis.

Menkel-Meadow, C., 2015. Mediation, arbitration, and alternative dispute resolution (ADR).

Thomas, R.W. and Wright, M., 2016. Construction contract claims. Palgrave Macmillan.

Todd, N. and Ezeani, E.C., 2016. Adjudication costs under the Housing Grants, Construction and Regeneration Act 1996: the attractions of Singapore’s Building and Construction Industry Security of Payment Act 2004.

Wang, J.D., 2016. The Duality of the Engineer as Contractor Administrator under FIDIC Contract Conditions. In Advanced Material Engineering: Proceedings of the 2015 International Conference on Advanced Material Engineering (pp. 379-387).

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