UK Adjudicators Newsletter June 2021

WWW.UKADJUDICATORS.CO.UK
JUNE 2021 NEWSLETTER
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EDITORS COMMENTS
The annual London conference takes place on
the 19 August 2021 and will be an online
conference with a physical networking and
drinks event in London in the evening at the
Middle Temple. Panel members will have
received an email with the links.
I am also pleased to confirm that the ‘rookie
adjudicator’ has provided an article for this
newsletter which newer adjudicators will find
of interest.
Please do forward articles, events and worthy
news for inclusion in forthcoming newsletters.
If you would like to take part in the conference
as a speaker or sponsor, please do let me now.
Our charity partner for the event is the Free
Representation Unit and we are looking for
donations of raffle prizes to assist them with
fundraising at the evening event.
Sean Gibbs LLB(Hons) LLM MICE FCIOB FRICS
FCIARB, is the Chief Executive Officer of
Hanscomb Intercontinental and is available to
sit as an arbitrator, adjudicator, mediator,
quantum expert and dispute board member.
sean.gibbs@hanscombintercontinental.co.uk

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IS IT TIME TO ‘DEFAULT’ FROM
DEFAULT PAYMENT NOTICES?
Not long after my last piece regarding
‘technical’ defences to payment claims was
included in the Adjudication Society’s Autumn
Newsletter, a judgement was handed down in
the TCC which caught my eye. The judgement
was in the case RGB Plastering Limited v Tawe
Drylining and Plastering Limited [2020] EWHC
3028 (TCC), and it surrounded issues
connected to those discussed in my last piece.
Whilst I won’t go into any great detail as to the
facts of the RGB case, for the purposes of this
piece I will set out a very brief background to
the dispute.
Tawe submitted an application for payment to
RGB. RGB did not respond to the application
with a payment notice or pay less notice, nor
did RGB pay Tawe the sum set out in Tawe’s
application. Tawe referred the payment
dispute to adjudication, seeking full payment
of the sum claimed in its application for
payment on the basis that RGB had not served
a valid payment notice or pay less notice in
response to the application therefore its
application had become a payee notice in
default/default payment notice. The
adjudicator agreed with Tawe and awarded it
the sum claimed in its application for payment.
Subsequently, RGB referred the matter to the
Court seeking a declaration that Tawe’s
application for payment was invalid because it
did not comply strictly with the requirements
of sub-contract in relation to the submission of
applications for payment (precisely the kind of
‘technical’ defence to payment which I
discussed in my last piece). The Court agreed
with RGB and granted it the declaration it had
sought.
This case is yet another example of the
situation we, as an industry, seem to have
gotten ourselves into since the floodgates
were opened by ISG Construction Ltd v Seevic
College [2014] EWHC 4007 (TCC). There have
been many reported cases since ISG, and
undoubtedly hundreds, if not thousands, more
which have been settled without coming
before the courts. The costs involved are
probably eye watering.
This, then, leads me to the following questions:
i) what benefit does the
construction industry actually
receive, in reality, from the default
payment provisions of the Housing
Grants Construction and
Regeneration Act 1996 (as

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amended by the Local Democracy
Economic Development and
Construction Act 2009); and,
ii) does that benefit (if any) outweigh
the cost?
As a Trainee Quantity Surveyor with Mowlem
in the mid-late 1990s, and then as an Assistant
Quantity Surveyor with Wates in the late
1990s, I was taught that a payee should always
provide full substantiation in support of all
sums claimed in each application for payment
which it submits to a payer. This substantiation
included things like marked-up drawings,
marked-up specifications, photographs, copies
of instructions, copies of meeting minutes,
‘take-offs’, build-ups to ‘star rates’, cross
references to BOQ rates, and suchlike; all of
which were to be provided with each
application for payment with the sole intention
being to support the payee’s right to payment
of the sum claimed in the application. If a
payee had properly substantiated each of its
applications for payment as aforesaid then, if
the payer failed or refused to pay the sum
claimed in any such application, the payee was
in a position to pretty much immediately refer
a dispute to adjudication without further delay
because it had already prepared all of the
documents/substantiation necessary to
demonstrate the ‘true value’ of the work which
it had completed and which it had claimed in
the application.
Then along came the Local Democracy
Economic Development and Construction Act
2009, and with it some new payment
provisions designed to give the previous
payment provisions of the Housing Grants
Construction and Regeneration Act 1996 some
‘teeth’. It was not until 2015 that this amended
legislation really showed its teeth, with the
judgement in ISG v Seevic. In essence,
following ISG v Seevic a payee could now
obtain full payment of the sum claimed in its
application for payment without having to
actually do any of the detailed work necessary
to properly substantiate the sum claimed
therein (provided, of course, that the payer
had failed to respond to the application for
payment with a payment notice or pay less
notice). This, in my experience, has
encouraged payees to take short cuts when
preparing applications for payment; such
applications being prepared to a very basic
standard and often in the hope that the payer
fails to respond with the requisite notices.
So, turning to the first question I set out above.
Whilst the Construction Act (as amended) may
be well intentioned in its aim of facilitating
cashflow, does it really achieve this in reality?
If a payee submits an application for payment
along with full substantiation in support of the
sum claimed therein, then what does it matter
whether or not the payer serves a payment
notice or pay less notice? Surely all that is
needed is a mechanism for ascertaining an

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application date and a final date for payment?
If the payer does not pay, by the final date for
payment, the sum claimed in an application for
payment then, having already prepared and
submitted a fully substantiated application for
payment, the payee is already in a position to
pretty much immediately refer the dispute to
adjudication so to have the ‘true value’ of the
work declared and paid. The payee could
obtain the declaration and payment in
adjudication proceedings in similar timescales
(if not the same timescales) as it would in what
has become commonly termed ‘smash and
grab’ adjudication proceedings. In view of the
foregoing, what benefit is actually really
achieved by the default payment notice
provisions of the Construction Act (as
amended)? Some may perhaps suggest that
the benefits are, in reality, fairly limited.
Turning to the second question I set out above.
If some were indeed correct to say that the
benefits of the default payment provisions of
Construction Act (as amended) are, in reality,
fairly limited, then at what cost do those
benefits come? The now widespread (in my
experience) practice of taking short cuts to
prepare applications for payment is
undoubtedly a fertile breeding ground for
conflict. With that conflict often comes an
irretrievable deterioration in relationships and
significant financial consequences. Is this
really what the amended legislation intended?
In view of the above, is it time to give serious
consideration to repealing the default
payment provisions of the Construction Act (as
amended)? Would this not encourage payees
to set out their claims with fully substantiated
clarity and thereby reduce both the
opportunity for conflict to arise and the
likelihood of conflict actually arising (or, at the
very least, reduce the likelihood of conflict
subsequently becoming adversarial in nature)?
The final date for payment and other relevant
provisions (other than the default payment
provisions) of the Construction Act could (and,
I suggest, should) remain; thereby maintaining
the right for a payee who is not paid by the final
date for payment to immediately refer the
dispute to adjudication on a ‘true value’ basis
(having already prepared and submitted with
its application for payment the necessary
substantiation in support of the sum claimed
therein) and have it decided in similar
timescales (if not the same timescales), from
the date the dispute crystallised, as it would in
a ‘smash and grab’ adjudication.
Some may say a repealing of the default
payment provisions of the Construction Act (as
amended) would lead to a reduction in the use
of adjudication as a means of resolving conflict
in the industry. However, should we, as an
industry, not be taking steps to avoid conflict
rather than encourage it? Further, would it not
mean that adjudicators could actually get on
with deciding disputes of substance, rather

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than technical disputes of little substance at
all?
Dean Sayers is a Director with Sayers
Commercial Ltd, and is available to sit as an
adjudicator and arbitrator
E: dean@sayerscommercial.co.uk
T: 07710 422671
MY FIRST APPOINTMENT – PART 1
BY THE ROOKIE ADJUDICATOR
It was the summer of 2019 and I received an
email from the Serving Nominator. Like all
those who receive such an email, I carried out
a quick assessment of the Notice of
Adjudication and undertook a conflict check. I
was good to go, so I sent my response to the
Serving Nominator. The next day I received the
email, which confirmed that I had been
appointed.
This was great news. This is what I had been
working towards. This was my first
appointment.
I had completed my CIArb Diploma in
Adjudication in May 2015 and I had gained
valuable adjudication experience working as a
Party Rep since 2013. But there is something
different being appointed as an adjudicator, it
all became rather serious.
Following confirmation of my Nomination, I
carefully prepared my opening communication
to the parties, which set out that I had been
nominated by UK Adjudicators as the
adjudicator, I gave some initial directions such
as, I was happy for communications to be
exchanged using email and that I only intended
to communicate with the persons /
organisations set out this letter and then, such
as my surprise to be appointed and mainly
because I hadn’t quite got round to doing
them, I realised that I needed a set of terms of
appointment to accompany my first
communication.
I considered several pieces of information and
pulled together a robust set of terms, which I
was happy with. Whilst creating these terms, I
had to deal with the matter of the hourly rate I
should charge to conduct the adjudication and
produce a decision for the dispute. What was
too much? What was too little? Looking back
through the charges received from
adjudicators when I had been acting as a party

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representative, I made a decision, which I felt
reflected my standing in the league of
adjudicators. For those wondering, the rate
was sub £180.00 per hour.
So having now completed the first
communication and the terms of appointment,
I sent the communication to the parties via
email using the email addresses stated in the
Notice of Adjudication and the UKA
Adjudicator application form. Shortly after, I
received an acknowledgement from the
Referring Party, I now just wanted the
acknowledgement from the Responding Party.
I waited and waited, and nothing came
through (I am talking hours rather than days).
As a user of Apple’s Mac Mail I did not have the
benefits of Microsoft Outlook and thus no
delivery or read receipt facility, so there was no
100% guarantee that the email had been
received by the Responding Party; although I
was certain it had been, having not received an
‘undeliverable receipt’ from my email domain.
Nevertheless, the last thing I wanted, with this
being my first appointment, was there to be
any issues with claims of breaches of natural
justice and allegations only communicating
with one party. So I did what most other
adjudicators would do (I hope), I printed off
two copies of the covering email, my first letter
and my terms of appointment (one set for the
Referring Party and one set for the Responding
Party) with the intention of posting them using
royal mail’s track and trace delivery facility.
Just as I was about to insert the copies into the
envelopes I had a negative thought, “What if
the Responding Party had been advised to
make my life hard work? What if they were
being advised by someone who told them to
not play ball and this is the reason why they did
not respond to my email after my first
communication, which had now prompted me
sending the document by post? Negative
thoughts I know, but I had seen the way other
adjudicators had been treated by party
representatives of the responding parties,
when I had been the Party Representative of
the Referring Party and I wanted to lock all
doors, which might be opened by someone
looking to cause trouble. To counter the
negative thought I decided to not send the
communications in envelopes branded with
my business logo, but rather in unmarked
envelopes only stating the name and address
of the parties and the contact names provided
to me. Was I being over cautious? A phrase
often said to us all by our friends, peers and
seniors came to mind, so I adopted the “better
safe than sorry” principle and I believe I made
the right decision. It certainly did give me
peace of mind.
Having now enclosed, sealed and addressed
the envelopes, I walked to my local Post Office
and sent the envelopes tracked for next day
delivery, with signature for proof of delivery.
The next day, after checking the Royal Mail
Track and Trace website, I had confirmation in

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writing that both parties had received a hard
copy of my first communication and my mind
was at ease.
Now all that I awaited was the Referral. Was it
going to come in or had the parties managed
to reach a deal and stop the adjudication in its
tracks?
THE ROOKIE ADJUDICATOR
BUILDERS LIEN UPDATE - RED TAPE
REDUCTION IMPLANTATION ACT
(BILL 62)
Background
The name of the Alberta Builders’ Lien Act has
changed to the Prompt Payment and
Construction Lien Act (the PPCLA), and
contains new rules and adjudication
procedures that will have a transformative
impact on the construction industry in Alberta.
The PPCLA is anticipated to come into force on
July 21, 2021, although the regulations have
not yet been released.
Bill 37, the Builders’ Lien (Prompt Payment)
Amendment Act, 2020 and its proposed
amendments to the Alberta Builders’ Lien
Act (the Prompt Payment Amendment) have
been discussed in BLG’s articles on October 23,
2020 and November 4, 2020.
On April 8, 2021, Bill 62, the Red Tape
Reduction Implantation Act (Bill 62) received
its first reading in the Alberta legislature. Bill 62
contains important information and guidance
on the adjudication provisions in the Prompt
Payment Amendment, a key feature of the
PPCLA. Most critically, Bill 62:

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Outlines the application and scope of the
PPCLA; and
Provides further definition to the adjudication
provisions in the PPCLA.
Scope of the PPCLA
Bill 62 excludes construction projects involving
the provincial government from the PPCLA,
including projects involving crown
corporations. Bill 62 also references other
entities and agreements to be excluded from
the PPCLA’s scope. While Bill 62 states that the
PPCLA will apply to “a prescribed class of
professionals acting in a consultative capacity”,
the Government of Alberta has not yet
published guidance or regulations about which
professions would fall within this “prescribed
class”.
Adjudication
More importantly, Bill 62 makes significant
changes to the adjudication provisions in the
PPCLA (the Adjudication Process). Bill 62
stipulates that parties cannot use the
Adjudication Process where a court action has
been commenced or where the contract is
complete. As such, the Adjudication Process
appears to be exclusively intended for disputes
occurring during the execution of a project.
Completed projects
While these changes highlight the primary goal
of the adjudication provisions of the PPCLA
(the faster resolution of disputes during a
construction project), they also create
uncertainty, potential for delay and
inconsistent results. When a project is
“complete” is often a point of contention
between parties in a construction dispute.
Uncertainty stemming from whether a project
is complete may result in more court
applications, which could result in fewer
disputes being subject to the Adjudication
Process and create further delays. Notably, as
drafted, warranty or remedial work that is
usually completed close to or after project
completion, may be excluded from the
Adjudication Process altogether.
Court actions
Carving out construction disputes that are the
subject of a court action may generate
unintended consequences. For example,
parties may be incentivized to commence
court actions to avoid the Adjudication Process
altogether in an attempt to ensure they are
able to select the forum for the dispute.
Further, there could be instances where a
broad court action involves the subject matter
and potentially the same parties involved in an
Adjudication Process. This raises the possibility
of inconsistent results. Without more guidance
from the Government of Alberta, the incentive
to race to the courthouse and the potential for
inconsistent results between courts and

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adjunction panels adds to the uncertainty that
the adjudication provisions of the PPCLA will
create.
Adjudication orders and judicial review
Prior to Bill 62, the PPCLA attempted to make
adjudication decisions final by making judicial
review the only way to challenge a
adjudicator’s decision. To further reinforce the
PPCLA’s adjudication provisions against delays
associated with court involvement, the PPCLA
made adjudication decisions enforceable
despite the filing of a judicial review
application. Bill 62 walks back the limits on the
court’s ability to become involved in a dispute
that is subject to the Adjudication Process.
Specifically, the order of an adjudicator
stemming from a dispute will not be binding
where:
The Court makes an order in respect of the
dispute;
An application for judicial review of the
determination is made by one of the parties;
The parties proceed to arbitration by entering
into a written agreement; or
The parties settle the dispute by written
agreement.
The “Exemptions”
In addition to raising serious questions about
the strength of any order stemming from an
Adjudication Process, the Exemptions also act
as a bar to the registration (and enforcement)
of an adjudication order. The Exemptions
create significant uncertainty about how
arbitration/meditation clauses, commonly
found in construction contracts, will apply to
the Adjudication Process. If a party
commences an arbitration, are they barred
from using the adjudication provisions? If
during the course of an Adjudication Process,
one party seeks to activate the arbitration
clause of their agreement, does this trigger one
of the Exemptions? Moreover, do the
Exemptions mean that, at any time, a party can
make an application to the court in respect of
a dispute? As drafted, the Exemptions may
provide parties an avenue to engage the court
even if they have failed to win the race to the
courthouse.
Procedural guidance
Finally, Bill 62 includes mechanical and
procedural provisions required to enforce an
order stemming from the Adjudication
Process. A party must register an adjudicator’s
order with the Clerk of the Court of Queen’s
Bench of Alberta (the Clerk of the Court) and
provide a written notice to the other party
within 10 days from the date that the Clerk of
the Court registers the adjudicator’s order.
Once the Clerk of the Court registers the
adjudicator’s order it has the same effect as a
court order. Bill 62 also includes two important

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limitations dates that stipulate that an
adjudicator’s order cannot be registered:
Two years after the order is issued; or
Two years after the court has rendered a
decision on an application for judicial review.
Conclusion
Bill 62 raises further uncertainty about the
applicability of the PPCLA. As a result, we
expect additional changes in the form of
further amendments or publication of draft
regulations will be required to better frame the
purpose and scope of the PPCLA.
We will continue to monitor the progress of Bill
37 and Bill 62 as both pieces of legislation
receive further consideration by the Alberta
legislature and provide updates as they
become available. It remains clear that
construction industry players, of all sizes, will
need to take proactive steps to prepare for and
mitigate against the uncertainty and new risks
created by these reforms to the
Alberta Builders’ Lien Act.
CONFACT CORE CONSTRUCTION CC
V JLK CONSTRUCTION (PTY) LTD
The Western Cape High Court handed down
judgement in the matter of Confact Core
Construction CC v JLK Construction (Pty) Ltd on
25 November 2020. Confact had applied for an
order giving effect to an adjudication award.
JLK alleged that the referral to adjudication
was not competent. Failing such a finding, JLK
counter applied for an order suspending the
implementation of the adjudication award on
the grounds that it would suffer substantial
injustice should the award be given effect.
The agreement between Confact and JLK was
governed by the JBCC Edition 5.0 N/S
subcontract agreement. If a disagreement
arises, Clause 40 thereof requires the
aggrieved party to give notice to the other to
resolve the disagreement. If the disagreement
is not resolved within 10 working days of this
notice it is deemed to be a dispute and the
aggrieved party has the option to refer it to
either adjudication or arbitration. The
adjudication is governed by the JBCC
Adjudication Rules which stipulate that the
parties must appoint the adjudicator by mutual
agreement within 5 days of the disagreement
being deemed a dispute. Where an

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appointment is not made in that period, either
party may request the nominating body to
appoint an adjudicator. The adjudicator’s
decision is binding on the parties who must
give effect to it without delay unless and until
it is subsequently revised by an arbitrator.
The Principal Building Agreement between the
Employer and JLK was terminated in December
2018, which resulted in the termination of the
subcontract agreement between JLK and
Confact. In January 2020 Confact demanded
payment of sums due in respect of work done
and the return of retention. JLK did not
respond and Confact gave notice to JLK to
resolve the disagreement in February 2020.
The disagreement was not resolved within 10
working days, was deemed to be a dispute and
Confact elected to refer it to adjudication. JLK
and Confact were not able to agree on an
adjudicator and Confab requested the
nominating body to appoint an adjudicator in
March 2020. Confact made submissions to the
adjudicator in May 2020, but JLK failed to
respond. The adjudicator delivered a decision
in favour of Confact in June 2020. Despite
demand, JLK failed to make payment in terms
of this award.
The dispute arose in 2018 when Confact
requested (and JLK refused to make) payment
on termination of the agreement. JLK argued
that the dispute should have been referred to
adjudication in 2018 and that as it was not, an
adjudicator had not been appointed within the
5 days stipulated in the Adjudication Rules, and
arbitration was the only competent option left
available to Confact. The court rejected this
argument on the following grounds:
It flies in the face of the stipulation in Clause 40
of the agreement that a disagreement is
deemed to be a dispute only once a notice to
resolve disagreement has been given, and such
disagreement hasn’t been resolved within 10
working days thereof. It would also mean that
every time a subcontractor made application
for payment, the date of this application would
determine the date of a dispute even as the
subcontractor remained unaware whether or
not the contractor intended to make payment.
The court concluded that it is absurd to
contend that an application for payment would
have the same effect as a notice.
Clause 40 also clearly provides for an election
between adjudication and arbitration and on a
plain and straightforward reading of this
provision, JLK’s contention was misplaced.
Adjudication is a specific process which caters
for specific time frames, the aim and purpose
for which is quick and immediate resolution
whilst the agreement still endures. If the
agreement is terminated then the parties
should use arbitration and they will effectively
be barred from adjudication. In support of this
argument JLK relied upon obiter in the matter
of Radon Projects (Pty) Ltd v NV Properties
(Pty) Ltd and Another. As the court rightly

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pointed out, however, the underlying
agreement in Radon was different to the
agreement between Confact and JLK. In Radon,
the agreement specifically stipulated that prior
to practical completion disputes were to be
referred to adjudication and after practical
completion disputes were to be referred to
arbitration. This didn’t have any application to
the agreement between Confact and JLK
because their agreement did not include such
a provision.
JLK also argued against the implementation of
the award on the grounds that it still had the
right to refer the dispute to arbitration and
had, in fact, done so. The court rejected this
argument on the grounds that there are
numerous authorities that support the
proposition that a party to a construction
contract is obliged to give effect to the terms
of an adjudication award, including payment,
until it is set aside (See Esor Africa (Pty)
Ltd/Franki Africa (Pty) Ltd joint Venture v
Bombela Civils Joint Venture, Case 2012/7442,
para13; Tubular Holding (Pty) Ltd v DBT
Technologies (Pty) Ltd 2014 (1) SA 244 (GSJ)
para 40; Basil Read (Pty) Ltd v Regent Devco
(Pty) Ltd [2011] JOL 27946 (GSJ)). Regardless of
whether JLK exercises its contractual right to
refer the dispute to arbitration, it is bound by
the adjudicator’s decision and must give effect
to it without delay, unless and until the
adjudicator’s decision is set aside by an
arbitrator.
In its counter application JLK argued that the
implementation of the adjudicator’s award
should be suspended pending the outcome of
the arbitration process because the
adjudication process was unnecessary, JLK did
not have an opportunity to challenge Confact’s
claim, and JLK had been indicating since June
2020 that it intended to refer the adjudication
award to arbitration. For these reasons JLK
alleged that it would suffer substantial
prejudice if the suspension was not granted
and that it was in the interests of justice to
suspend the implementation of the
adjudicator’s award. The court found that it
was Confact who would suffer real and
substantial prejudice should the adjudicator’s
award not be implemented. The court has a
discretion to grant a suspension of an order
where real and substantial injustice will
otherwise be done, but JLK had wilfully refused
to pay Confact for some 18 months, refused to
agree on an adjudicator and refused to
participate in the adjudication process. It was
not, therefore, open for it to complain that it
had not been afforded the opportunity to
challenge Confact’s claim. The court also
pointed out that despite JLK’s assertion that it
required the dispute to be ventilated by
arbitration, there was no evidence before the
court that JLK had referred the matter to an
arbitrator. JLK had, therefore, dismally failed to
reach the threshold of exceptional
circumstances required to satisfy the granting
of a suspension order.

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AMALGAMATED CONSTRUCTION
CONTRACTS - GRASP THE NETTLE
AND ENFORCE (OR NOT)?
Pursuant to the Housing Grants, Construction
and Regeneration Act 1996 (as amended) a
party to a construction contract is permitted to
refer a dispute arising under the contract to
adjudication.i
It is noteworthy that ‘dispute’ is
referred to in the singular. Consequently,
should a dispute between parties be spread
over more than one contract it is likely that
more than one dispute exists, thus, leaving an
adjudicator devoid of jurisdiction. On occasion
parties may have entered more than one
construction contract with each other on the
same project but administer and treat those
contracts as one. For example, a contractor
may enter a contract with a sub-contractor for
a particular works package and later enter a
contract with that same sub-contractor for
another works package but administer
payments for both of those contracts in an
amalgamated way. Similarly, a local authority
may enter a framework agreement with a
contractor and place separate Orders
thereunder but amalgamate payments for
those Orders. Should a party refer a dispute to
adjudication under such arrangements
jurisdictional challenges may arise on the
grounds that there is more than one dispute as
the issues relate to more than one contract.
Such an issue arose in the recent case of Delta
Fabrications & Glazing Ltd v Watkin Jones &
Sons Ltd.ii
The claimant had entered two sub-
contracts with the defendant for the provision
of work packages and contended that the
parties had subsequently agreed by their
conduct to vary the contracts so that they were
amalgamated into one, particularly, as
payments for both contracts were dealt with in
one application. A dispute arose between that
parties, which the claimant successfully
referred to adjudication. The adjudicator
concluded that there was one amalgamated
contract. The claimant applied for summary
judgment to enforce the adjudicator’s award.
The defendant resisted on the grounds that the
adjudicator did not have jurisdiction because
the claimant referred a dispute under two
separate contracts in the same adjudication.
The defendant contended that there was an
extensive course of dealings between the
parties relating to various projects and the
parties had entered separate sub-contracts for
works packages on those projects. The parties
had adopted a practice of having one payment
notice for all the claimant’s sub-contracts
under each project without amalgamating the
sub-contracts into one.
Watson J considered that if the court were to
find that the two contracts were varied and
amalgamated by conduct, the court must be
satisfied that the parties’ conduct was
‘unequivocal and consistent’ so that a single

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contract came into existence. If that were the
case, the defence had no real prospect of
success and the court should, as Watson J put
it, ‘grasp the nettle’ by giving summary
judgment. In considering whether a defence
has a real prospect of success, consideration
must be given to the background of the policy
underlying adjudication enforcement, which is
that of maintaining cashflow and of
maintaining the principle of pay now and argue
later.iii
In dismissing the application for summary
judgment, Watson J held that the documents
relied on by the claimant as constituting the
agreement to vary the contracts were not
unequivocal. Indeed, far from satisfying this
requirement the conduct of the parties, both
before and after the alleged agreement to
amalgamate, indicated that the parties did not
intend that the contracts would be
amalgamated or that only one contract
existed. A factual analysis supporting this
conclusion showed that:
Although the defendant’s payment notice
contained an amalgamated figure for payment
due under both contracts, the supporting
documents dealt with both contracts
separately. It did not follow that including the
total of the sums due under both contracts in
one payment notice amounts to an offer to
amalgamate the contracts so that they cease
to exist as separate contracts and become one
contract;
Similarly, although the claimant’s payment
application contained a single combined figure
for both contracts, the supporting documents
consisted of separately prepared, detailed
calculations of the sums due under the two
contracts;
Variations agreed between the parties were
readily identifiable as relating to distinctive
contracts;
The correspondence between the parties was
inconsistent referring to ‘contract’ in the
singular and ‘contracts’ in the plural; and
Rather than referencing the alleged variation
to amalgamate the contracts by conduct, the
Referral Notice contended that the separation
of the contracts ended upon the
commencement of the works. This was
inconsistent with the claimant’s stance at
enforcement.
In conclusion Watson J held that:
42 … the Defendant has not only a real, but a
strong, prospect of successfully defending the
claim on the ground that the adjudicator
lacked jurisdiction, because the Claimant
referred disputes under two separate
contracts to the adjudicator in one referral.’

15 | P a g e
Although, not referred to in Delta Fabrications
it is interesting to consider the judgment of
Amec Group Ltd v Thames Water Utilities Ltd.iv
In Amec Group a similar jurisdictional
challenged was raised, namely, that Orders
placed under a framework agreement
constituted separate contracts. Consequently,
the payment dispute dealt with by the
adjudicator related to more than one dispute
as the differences between the parties arose
across multiple contracts. On the wording of
the contract Coulson J held that the dispute
arose under the framework agreement and not
the Orders placed thereunder, thus, the
adjudicator had jurisdiction to deal with the
dispute. However, Coulson J noted that had
the dispute(s) arose under a series of Orders,
the multiple dispute point ‘would probably
have been successful’v
meaning that the
validity of any aggregated applications for
payment could not be dealt with in a single
adjudication. Consequently, such dispute(s)
would lead to:
’… hundreds of separate adjudications, each
for a trifling sum, each arising under an
individual works contract. It seems … that was
not what the parties agreed … and it would not
give rise to a solution that could be described
as commercially sensible.’vi
Delta Fabrications and Amec Group highlights
the commercial practicalities that parties
should have in mind when considering
adjudication provisions in the context of
multiple contracts between the parties on the
same project. Without proper consideration
disputes between the parties may be
prevented from any sort of meaningful
adjudication as aggregate claims arising across
multiple contracts would have to be dissected
and separated into potentially trifling sums.
This may not be commercially viable. If not
properly considered at the outset subsequent
arguments about the amalgamation of
contracts by way of conduct, as advanced in
Delta Fabrications, may be difficult to support.
Showing that conduct was ‘unequivocal and
consistent’ with the amalgamation of the
contracts is an onerous proposition to put
forward.
Paul Hughes
phughes@sharpepritchard.co.uk 1
s108(1).
[2021] EWHC 1034 (TCC).
Ex Novo Ltd v MPS Housing Ltd [2020] EWHC 3804
(TCC), para 4.
[2010] EWHC 419 (TCC).
Amec Group Ltd v Thames Water Utilities Ltd [2010]
EWHC 419 (TCC), para 37.
Amec Group Ltd v Thames Water Utilities Ltd [2010]
EWHC 419 (TCC), para 33.

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SINGAPORE: HIGH COURT CLARIFIES
DIFFERENT DEFINITIONS OF "DAY"
UNDER THE SOP ACT AND
CONSTRUCTION CONTRACTS
In brief
Under the Building and Construction Industry
Security of Payment Act (Cap 30B) ("SOP Act"),
the definition of “day” under Section 2
excludes “a public holiday within the meaning
of the Holidays Act (Cap. 126).” In Tay Choon
Huat, deceased v Soon Kiat Construction &
Maintenance Pte Ltd [2021] 3 SLR 1005 (“Tay
Choon Huat”), the Singapore High Court
(SGHC) considered whether this statutory
definition of "day" would apply to the Articles
and Conditions of Building Contract of the
Singapore Institute of Architects (Lump Sum
Contract, 9th Ed) (“SIA Conditions”).
After reviewing existing authorities, the SGHC
held that parties may contractually agree on a
more stringent deadline for the provision of a
payment response under the SOP Act. Where
the SIA Conditions is applicable, the more
inclusive definition of "day," which includes
public holidays, will apply notwithstanding the
statutory definition provided for under the
SOP Act. The case is a reminder to parties
entering into construction contracts to
expressly define terms used in their contract,
particularly as they may relate to the
calculation of time in relation to the statutory
adjudication process under the SOP Act.
Summary
The employer, Tay Choon Huat (“TCH”),
entered into a construction contract
(“Contract”) with the contractor, Soon Kiat
Construction & Maintenance Pte Ltd (“SK”),
which incorporated the SIA Conditions. Under
Clause 31(15)(a) of the SIA Conditions, TCH was
to respond to an interim payment claim by SK
by providing a payment response "within 21
days" after the interim payment claim had
been served on the employer.
In this case, the payment claim was served on
TCH on 20 April 2020. TCH in turn provided its
payment response on 15 May 2020. The
Adjudication Application (AA) was lodged on
28 May 2020. During this period, there were
multiple public holidays and the parties were
in dispute as to whether the word "day" in
Clause 31(15)(a) of the SIA Conditions included
or excluded public holidays. It was not in
dispute between TCH and SK that the public
holidays on 24 May and 25 May 2020 were to
be excluded from the seven‑day period for the
lodgement of the AA. However, the parties

17 | P a g e
were in disagreement as to whether the two
public holidays on 1 May and 7 May 2020
ought to be excluded from the 21‑day period
under the SIA Conditions for TCH to file its
payment response:
On TCH's case, as the word "day" includes
public holidays, the payment response was due
on 11 May 2020 (i.e., 21 calendar days from the
service of the payment claim on 20 April 2020)
and the AA had to be lodged by 27 May 2020.
In contrast, SK argued that as the word "day"
did not include public holidays, the payment
response was only due on 13 May 2020 (i.e., 23
calendar days from the service of the payment
claim on 20 April 2020) and the AA was to be
lodged by 29 May 2020.
The SGHC held that the word "day" included
public holidays on two grounds:
First, the SIA Conditions did not expressly
adopt the definition of "day" as provided for in
the SOP Act. In contrast, the drafters of the SIA
Conditions incorporated the definitions of
"payment claim" and "payment response"
from the SOP Act.
Second, the court considered the use of the
word "day" in other parts of the Contract,
which supported the interpretation of "day" as
including public holidays. For example, the
liquidated damages clause expressly provided
that the Contract period would include
Sundays, public holidays and rest days.
Key takeaways
This case confirms that the definition of “day”
under the SOP Act is not applicable to the SIA
Conditions. The SGHC also confirmed that
parties may contractually agree on a more
stringent deadline for the provision of a
payment response under the SOP Act.
The SGHC also cautioned that "[u]ltimately, the
particular contract in each case stands to be
construed" and whether statutory definitions
are incorporated would depend on how the
contract is to be construed. Parties should
therefore be careful when drafting their
construction contracts to ensure that they
expressly specify definitions for periods of time
and whether such periods are inclusive or
exclusive of public holidays.
Given how seriously the statutory timelines
under the SOP Act are typically adhered to,
parties should pay particular attention to the
definitions of time periods and the calculation
of timelines in their contracts. Where there
may be ambiguity as to these matters, parties
should err on the side of caution and seek
advice to avoid falling foul of the SOP Act.
Baker McKenzie - Nandakumar Ponniya,
Wong Tjen Wee, Daniel Ho and Daryl Yang

18 | P a g e
ONE YEAR IN REVIEW: A FIRST-
HAND LOOK AT AN ADJUDICATION
UNDER THE ONTARIO
CONSTRUCTION ACT
Introduction
In June 2020, Glaholt Bowles LLP completed
one of the first adjudications under the
new Construction Act, R.S.O. 1990, c. C.30 (the
“Act”).
The adjudication provisions under Part II.1 of
the Act came into force on October 1, 2019
and were developed to ensure continuity of
work on jobsites and cash flow through the
construction pyramid.
Adjudication is available where both the
procurement process (if any) is started, and
the contract is executed, after October 1, 2019.
It is unavailable in situations where the con-
tract may have been executed after October 1,
2019 but the procurement process was
commenced prior to that date. In other
words, both the procurement process (if any)
must have commenced and the contract must
be formalized after October 1, 2019 for
adjudication to be an option.
This article discusses a first-hand experience of
legal advocacy in an adjudication and provides
insight into whether this new form of dispute
resolution serves to meet the legislative goal of
efficient resolution of contract disputes on
construction sites.
The Decision to Adjudicate
The decision to pursue adjudication on behalf
of a subcontractor client (the “Claimant”) was
based on several factors including availability
of adjudication, the nature of the dispute and
client cost considerations.
Our firm saw an opportunity to explore a quick
form of resolution which had the potential to
meet the needs of our client. The claim
centered on a residential project dispute
between two private individuals and involved
no procurement process. Section 87.3 (4) of
the Act, the transition provision, makes it clear
that in determining the availability of
adjudication, the contract governs.
Here, the contract between the contractor and
owner of the residence had been formalized
after October 1, 2019. The subcontractor’s
agreement was also formalized after October
1, 2019. It is important to note that had the
contract been effective prior to October 1,
2019, it would not have mattered that the
Claimant, as subcontractor, entered into the

19 | P a g e
agreement after that date. Adjudication would
not have been available in those
circumstances.
We grappled with a few anomalies in deciding
whether to pursue adjudication. First, there
was no written agreement but only an oral
agreement along with payment records and
various communications (emails, texts) related
to the subcontract. Second, section 13.5(3) of
the Act explicitly states that adjudication is not
available when a contract or subcontract is
complete, unless the parties agree otherwise.
In our case, if section 13.5(3) had been raised,
we were prepared to take the position that the
“completion” of a contact was not the same as
an effective termination of the contract (as in
our case) and therefore the adjudication
period had not expired for the Claimant. To
reiterate, adjudication is meant to be a “real
time” resolution vehicle for active projects
which is why it is unavailable in contracts that
are completed.
The types of disputes that may be referred for
adjudication are listed under section 13.5(1) of
the Act. We determined, based on the facts,
that the Claimant’s dispute fell into the cat-
egory of “payment under the contract”.
We continued our analysis of whether to
pursue adjudication by taking stock of the
scope of the claim. The claim was relatively
small (less than $100,000) and the issue fairly
discrete and straightforward (non-payment).
Section 13.5(4) of the Act explicitly states that
unless the parties agree otherwise, ad-
judication should only address a single matter.
We were confident that the facts of the claim
met this requirement.
Finally, we were conscious of the Claimant’s
costs and business needs. As the operator of a
sole proprietorship, the Claimant’s priority was
to recoup funds as quickly as possible.
Adjudications can be completed in writing and
written materials have strict page limits and
submission deadlines. Importantly, a
determination must be made by the
adjudicator within 30 days (s.13.13(1)) unless
an extension of time is approved with written
consent of the parties (s.13.13(2)). An
attractive feature of adjudication is the ability
to avoid expansive hearings and protracted
pleadings, which are typical of traditional lien
actions.
Following our review of the Claimant’s dispute,
we decided adjudication was appropriate in
the circumstances. We issued a Notice of
Adjudication to opposing counsel as required
under section 13.7(1) of the Act.
Ontario Dispute Adjudication For
Construction Contracts (ODACC)
On July 18, 2019, the Province of Ontario
announced the appointment of ADR Chambers

20 | P a g e
as the Authorized Nominating Authority under
section 13.2(1) of the Act.[1]
ADR Chambers, for the purposes of carrying
out its mandate, operates under the title
Ontario Dispute Adjudication for Construction
Contracts (“ODACC”). ODACC oversees the
appointment of adjudicators and each
adjudication proceeding.
ODACC’s website is a critical tool in the
adjudication process. It acts as both a source of
information and, if so desired, the
administrative centerpoint of the proceeding
via the online portal.
In our case, we used the online portal and
found it user-friendly. After registering an
account, we were able to create a file online
for the new claim. We completed and
electronically submitted the online form for
the Notice of Arbitration.
Each party (or their counsel) must register for
an ODACC account to use the online portal. The
online portal can be used to send and receive
all materials pertaining to the claim. The
adjudicator and the parties can also use it for
direct communication. All conversation
histories are saved to the system. When a
message is sent or received, it is viewed by all
parties along with an ODACC administrative
coordinator.
Using the online portal is more efficient than
email or hardcopy correspondence. The portal
keeps the adjudication organized, with all
information and required next steps clearly
displayed on the user “dashboard”. The portal
is truly a “one-stop shop” for carrying out an
adjudication proceeding under the Act.
Notifications are sent to the user’s email
whenever materials are uploaded to the online
portal or a new message is available. We
experienced some technical glitches where
notifications were significantly delayed, but
ODACC quickly resolved that issue and has
since made instant notification a reliable
feature for users.
It is not required that parties register and use
the online portal as part of the adjudication.
Given that adjudications will likely be in writing
in most cases, the option remains to circulate
documents and other correspondence via
email, fax or mail. However, the online portal
is recommended based on our experience.
Even if a party does decide to use the online
portal, the regulations under the Act still
require that any documents (including the
Notice of Adjudication) be “given” to the op-
posing side under the rules of court (s.13.7(1)).
In other words, despite using the online portal
to submit all documents, we still formally
served the materials on opposing counsel.[2]
The Adjudication Process
Notice of Adjudication

21 | P a g e
The Notice of Adjudication is an important
document for the Claimant because it must
concisely describe the dispute in 250 words or
less. In addition, it must include: (1) the
Claimant’s suggested adjudicator; and (2) the
suggested procedure for conducting the
adjudication.
I. Selecting an Adjudicator
In selecting a proposed adjudicator, we had
two options. The first option was to review the
ODACC registry of adjudicators and select from
the extensive list of certified adjudicators. The
registry provides background details of each
adjudicator including their profession, years of
experience, professional memberships,
languages spoken and fee range. The second
option is choosing a certified adjudicator based
on recommendations from colleagues or other
networks. In our case, our proposed
adjudicator was based on a short list of
recommendations from other practicing
construction lawyers.
It is not required that an individual be a
licensed lawyer in Ontario to be certified as an
adjudicator. Many are accountants, project
managers, architects, quantity surveyors or
engineers. Depending on the nature of the
dispute, some parties may not want a lawyer
as an adjudicator. Instead, the parties may
decide that an adjudicator with training and
depth of experience in a highly technical
profession (e.g. structural engineering) is
better suited to make a determination.
Still, any adjudicator has the ability to request
the participation of an independent “assistant”
under section 13.12(5) of the Act.
If the parties cannot agree to an adjudicator,
one will be assigned by ODACC.
II. Selecting an Adjudication Procedure
ODACC’s website provides four (4) “pre-
designed” options for conducting an
adjudication. The first three options are strictly
in writing, where the parties exchange written
materials of varying lengths. The fourth option
involves a 30-minute oral presentation by each
party.
If none of the four pre-designed procedures fit
the needs of the parties, a fifth option is for the
parties, with input from the adjudicator, to
develop a customized process. A customized
process may involve, for instance, a site visit or
the appointment of an assistant. An assistant is
an experienced professional such as an
architect, engineer, or actuary who carries out
the role of an expert in helping the adjudicator
determine facts in question prior to reaching a
determination.
Each type of procedure has its own cost
implications. Adjudicator fees can range from a
flat fee of $800 all the way to hourly rates of
$750 per hour depending on both the amount

22 | P a g e
of money in dispute and the complexity of the
issue. In our case, the adjudicator’s fee was
due 10 days after the adjudicator agreed to
hear the matter.
The Claimant and Respondent each pay 50% of
the adjudicator’s fee and are expected to cover
their own legal costs unless the adjudicator
determines otherwise.
In our case, we initially selected the pre-
designed process #1, which allows for a
maximum of 2 pages of written submissions
from both parties. However, based on the
adjudicator’s recommendation, all parties
agreed to pre-designed process #2, which
allows the Claimant a total of 5 pages of sub-
missions and a one-page reply. The
Respondent is also allowed a total of 5 pages.
The adjudicator must approve the selected
procedure for conducting the adjudication. It
was helpful to have the adjudicator’s input in
selecting the procedure because we had
initially underestimated the length of written
submissions we would need to effectively
advocate our client’s position.
A more difficult decision is determining
whether written submissions will suffice or if
your client would benefit from the
comparatively more costly and time-
consuming options of oral submissions or site
visits. The need to ensure your client is
positioned for the best possible outcome is
paramount and that may mean that the
truncated pre-design procedures are not suit-
able given the substantive issue in dispute.
Supporting Documents
After we submitted our notice of adjudication
and received confirmation of the adjudicator’s
approval to hear the matter, we had five (5)
days to submit our supporting documents.
Akin to a statement of claim, our supporting
documents consisted of a 4-page, written
advocacy piece of the issue and why the
Claimant was entitled to recovery. The
Respondent was given 7 days to submit a 5-
page response. The Claimant was then given 3
days to issue a 1-page reply.
Attached documents such as contracts and
invoices are not counted in the page limit.
However, it is good practice to clarify what
limits, if any, might be placed on the number of
attachments allowed in the adjudication. In
some cases, the need for additional documents
(emails, text, etc.) may be necessary to
establish key facts. Communication between
parties and with the adjudicator is essential to
setting the parameters of what is acceptable.
Section 13.12(1) gives the adjudicator
significant flexibility in overseeing the conduct
of the adjudication.
Determination

23 | P a g e
The adjudicator is required to render a
determination within 30 days of receiving all
documents (s. 13.13(1)). In our case, we
received a determination in 13 days.
We were satisfied with the quick turnaround
but recognize that this may not occur in other
cases. External factors that impact scheduling
may arise or the complexity of the issues may
require a longer period of analysis and review
of materials by the adjudicator.
ODACC uploaded the final determination with
written reasons to the online portal. Seven (7)
days later, a certified copy of the
determination was also uploaded to the online
portal.
As soon as we received the certified copy of the
determination, we filed it with the court per
section 13.20 of the Act, thus making it
enforceable as any other court order. In
accordance with section 13.20(3), we
contacted opposing counsel and provided
notice that the determination had been filed
with the court.
Parallel Proceedings
Notwithstanding the decision to pursue
adjudication, an important practice tip is to
ensure that any claim for lien is properly
preserved and perfected under the Act.
In our case, the Claimant pursued both the
adjudication and a standard lien claim. During
the adjudication period, we continued to serve
pleadings and communicate with opposing
counsel concerning the lien action. It is prudent
to protect a client’s lien rights in the event the
lien remains the only viable method of
enforcement.
The determination of an adjudicator is the
equivalent of an interim order. Per Section
13.15, it is binding on the parties until a later
determination by a court or arbitrator or until
the parties enter into a written agreement re-
specting the adjudicator’s decision.
If the parties accept the determination and
thereafter forgo the lien action, another key
practice tip is to seek an order on a without
costs basis when discontinuing the lien action.
If this is not done, there remains an opportun-
ity for the defendant to make a motion within
30 days of the discontinuance to seek such
costs under Rule 23.05(1) of the Rules of Civil
Procedure, R.R.O. 1990, Reg. 194.
Secondly, parties should strongly consider
executing a mutual “full and final” release to
avoid the resurgence of future claims related
to the matter already addressed in the
adjudication.
If a party disagrees with the adjudicator’s
determination, the option remains for them to
seek the court’s final disposition in the lien
action. However, under section 13.15(2), the
court or an arbitrator may consider the merits

24 | P a g e
of a matter decided by the adjudicator. In
other words, seeking a final determination in a
separate forum will not necessarily lead to a
different result from the adjudication.
A party that disagrees with the outcome of an
adjudication has the option of seeking judicial
review of the decision, with leave of the
Divisional Court, as prescribed in section
13.18(1) of the Act.
The lien action was discontinued in our case
and judicial review was not sought by any of
the parties. Still, anyone participating in an
adjudication should be attuned to the reality of
parallel proceedings, especially those involving
lien actions and should be prepared to protect
their client’s interests.
Conclusion
As one of the first completed adjudications in
Ontario, our experience confirms what the
legislators hoped would be the impact of
adjudication. We found the process to be quick
and relatively inexpensive as compared to a
lien action or other legal proceeding which can
seriously hamper the progress of a
construction project.
We were impressed by the thoroughness of
the analysis and extensive written reasons of
the adjudicator. There were no concerns that
the adjudicator was engaging in what some
have suggested may be a form of “quick and
dirty” or “rough” justice. On the contrary, the
adjudicator was actively involved in the
process and provided direction to ensure the
proceedings ran smoothly and all parties
would have a fair opportunity to present their
case.
Administratively, the ease of use of ODACC’s
online portal, along with the pre-designed
forms of adjudication made participation
seamless. In our case, the fast turnaround in
receiving a determination removed any doubt
that adjudication can be the “real time”
dispute resolution tool that it is intended to be.
If adjudication is going to have the long-term
impact of maintaining continuity of work on
construction projects and cashflow, then
industry stakeholders and their counsel will
need to utilize adjudicationwhere appropriate.
An interesting study would be the short and
long-term effects of these new provisions in
the Act. However, such a study cannot take
place until there is a sufficient number of
adjudications.
Adjudication has the potential to save costs
and maintain the focus on bringing projects to
completion. With these priorities in mind, we
are hopeful that adjudication can serve the
construction industry well in this expanded era
of alternative dispute resolution.
[1] https://adrchambers.com/wp-content/
uploads/2019/07/announcement.pdf

25 | P a g e
[2] Section 16.1(1), O. Reg. 306/18:
Adjudications under Part II.1 of the Act.
Patricia Joseph
Associate
T:(416) 368-8280
Direct Line: (647) 699-5431
PatriciaJoseph@glaholt.com
FALLING INTO JURISDICTIONAL
ERROR UNDER SECURITY OF
PAYMENT LEGISLATION
The process of adjudication under the security
of payment legislation requires adjudicators to
reconcile difficult requirements, namely, to
determine often complex legal issues within a
short time frame, and to observe the strict
requirements of the legislation. If the right
balance isn't struck, adjudicators may fall into
jurisdictional error. This is what occurred in the
recent case of Total Lifestyle Windows Pty Ltd
v Aniko Constructions Pty Ltd & Anor [2021]
QSC 92.
Total made a payment claim against Aniko
under a construction contract and Aniko
denied liability in its payment schedule. Total
proceeded to make an adjudication application
under the Building Industry Fairness (Security
of Payment) Act 2017 (Qld) and the
adjudicator found in favour of Aniko. In issue in
this case was whether the determination was
invalidated by jurisdictional error because the
adjudicator:
considered reasons included in Aniko's
adjudication response that had not been
included in its payment schedule; and
failed to consider a relevant document that
had been submitted by Total.
The Court agreed that the adjudicator erred in
each instance, and declared the resultant
determination void. In reaching this
conclusion, the Court considered the operation
of certain provisions of the Act, relevantly:
section 88 – in deciding an application, an
adjudicator may only consider matters
prescribed in subsection (2), which includes
the provisions of the construction contract in
issue, the payment claim and the payment
schedule and, in respect of each, "all
submissions, including relevant documents,
that have been properly made" in support of
the claim or schedule respectively;
section 88(3) – an adjudicator must not
consider "a reason" included in an adjudication

26 | P a g e
response to an adjudication application where
section 82 prohibits the inclusion of the
reason; and
section 82 – an adjudication response "must
not include any reasons (new reasons) for
withholding payment that were not included in
the payment schedule".
The Court considered, and rejected, various
arguments advanced by Aniko regarding the
provisions of the Act dealing with "new
reasons". With respect to one of Total's claims,
Aniko's adjudication response relied on – and
the adjudicator applied – a clause of the
contract (clause 18) that was not raised in
Aniko's payment schedule. Aniko contended
that:
reference to clause 18 was not made in the
payment schedule because the clause had not
been referred to in Total's payment claim. The
Court noted in response that "s 69(c) of the Act
requires a respondent to include all of its
reasons for withholding payment in its
payment schedule and not just those that are
specifically raised or prompted by the payment
claim";
section 82(3)(c) of the Act (which states an
adjudication response may include
"submissions relevant to the response")
allowed it to raise the operation of clause 18.
The Court disagreed, stating that this provision
"must be read subject to section 82(4) which
provides that an adjudication response must
not include any reasons for withholding
payment that were not included in the
payment schedule"; and
the operation of clause 18 was within the
adjudicator's jurisdiction because section
88(2)(b) permits consideration of the relevant
construction contract. Dispensing with that
argument, the Court held that section 88 "must
be read as a whole", and that while an
"adjudicator might consider the provisions of
the construction contract, the adjudicator may
not consider a reason associated with a
particular provision if it is a reason which falls
within section 88(3)."
The Court also noted that the prohibition
imposed by section 88(3)(b) "is a very wide
restriction", that it is immaterial whether a
proscribed reason forms part of an
adjudicator's decision. Rather, once such a
reason is considered by an adjudicator, "then
section 88(3)(b) has been breached, whether
or not the consideration leads to a particular
decision."
On the matter of the adjudicator's failure to
consider a relevant document submitted by
Total, Aniko pointed to the fact the
adjudicator, in his determination, stated "he
had had regard to 'the payment claim to which
the Application relates, together with all
submissions, including relevant
documentation'”. While conceding that

27 | P a g e
adjudicators are subject to "extraordinary
pressure" when dealing with applications, and
that "[i]nfelicity of expression is not a ground
for finding that there has been an omission to
comply with the Act", nevertheless, the Court
held that the document in issue was of such
import to Total's case, squarely contradicting
the case advanced by Aniko (that was accepted
by the adjudicator), that reference to it should
have been made:
"Merely saying that one has had regard to all
relevant documentation is not conclusive on
that issue. The omission to refer to a document
of considerable importance … allows the
inference to be drawn that regard was not had
to it."
The case not only demonstrates the strictness
with which requirements of the Act relating to
adjudication applications are applied, but also
the importance of considering, and including in
payment schedules, all of the arguments on
which a respondent may wish to rely.
CIPAA: ADJUDICATORS' POWERS TO
ORDER REMEDIES AND INTEREST
WHEN PAYMENT CLAUSE IS
UNENFORCEABLE
Introduction
Section 25 of the Construction Industry
Payment and Adjudication Act (CIPAA) 2012
lists adjudicators' extensive powers in
adjudication proceedings, including the power
to award financing costs and interest. The
recent high court decision in First Commerce
Sdn Bhd v Titan Vista Sdn Bhd and another
case(1) examined the extent of an
adjudicator's powers to determine remedies
and interest in unique circumstances where a
payment clause was void and the default
statutory implied payment provision in the
CIPAA was pleaded.
Facts
First Commerce Sdn Bhd was appointed as the
main contractor by the employer of a project
to build and complete the super structure of
the project. Upon being notified by the
employer, the architect directed First
Commerce to appoint Titan Vista Sdn Bhd as its
nominated subcontractor to perform part of
the project. Accordingly, First Commerce
issued a letter of award to Titan Vista for such
work. The letter stated that the terms and

28 | P a g e
conditions of the Malaysian Institute of
Architects (PAM) Nominated Subcontract 2006
were incorporated into the contract between
the parties. Further, Clause 9 of the letter of
award provided that the payment for the
certified amounts had to be paid in the form of
cheques from the employer within 45 days
from the date of the architect's certificates.
In the course of executing the contracted work,
Titan Vista commenced an adjudication against
First Commerce pursuant to the CIPAA to
recover payment for four unpaid interim
certificates. Specifically, Titan Vista claimed an
outstanding sum of approximately RM2.37
million and late payment interest. Titan Vista's
adjudication reply also stated that its claims
were based on Clause 9 of the letter of award
and pleaded that the default payment
provisions in Section 36 of the CIPAA would
apply if Clause 9 of the letter of award was
found to be a conditional payment prohibited
by Section 35 of the CIPAA.
After hearing both parties, the adjudicator
decided in favour of Titan Vista. The
adjudicator found that Clause 9 of the letter of
award was unenforceable as it was a
conditional payment provision prohibited by
Section 35 of the CIPAA. The adjudicator
referred to the "Period of Honouring
Certificates" found in Clause 30 of the
Appendix to the PAM Nominated Subcontract
2006, instead of Section 36 of the CIPAA as had
been pleaded; he ordered First Commerce to
pay the amounts certified and claimed by Titan
Vista within 21 days from the date of each
interim certificate.
Dissatisfied with the adjudication decision,
First Commerce relied on Sections 15(1)(b),
15(1)(c) and 15(1)(d) of the CIPAA to set aside
the adjudication decision at the high court.
Titan Vista, on the other hand, filed an
originating summons pursuant to Section 28 of
the CIPAA at the high court to enforce the
adjudication decision as a judgment when First
Commerce failed to pay in accordance with the
adjudication decision. Both applications were
heard on the same day before the same court.
Issue
At the high court, First Commerce's main
contention was that the adjudicator had erred
in ordering it to pay the amounts certified and
claimed by Titan Vista based on the due dates
which he had set (ie, within 21 days of the date
of the interim certificates) as opposed to the
due dates pleaded by Titan Vista (ie, within 45
days of the date of the interim certificates
pursuant to Clause 9 of the letter of award).
This, in turn, had resulted in excessive interest
being awarded to Titan Vista.

29 | P a g e
Decision
Justice Lim Chong Fong found that Titan Vista
had not specifically confined its claims to
Clause 9 of the letter of award as it had
requested payment of the interim certificates
to be based on either:
Clause 9 of the letter of award; or
Section 36 of the CIPAA if Clause 9 of the letter
of award was void in contravention of Section
35 of the CIPAA.
Hence, the adjudicator had acted within his
jurisdiction based on the disputes referred to
him. The judge also held that adjudicators are
not bound by the disputes referred to them in
the exact way as pleaded by the parties,
especially with regard to the remedies sought.
In the present case, the judge ruled that the
adjudicator, having decided that Clause 9 of
the letter of award was void and
unenforceable, need not decide on the issue of
interest based on Section 36 of the CIPAA as
pleaded by Titan Vista because Section 25(o) of
the CIPAA authorises adjudicators to decide on
issues of interest, including the date of accrual,
as they see fit. It was therefore justified for the
adjudicator to adopt the express provision
found in PAM Nominated Subcontract 2006
which binds both parties in lieu of Section 36 of
the CIPAA.
Comment
The high court decision is a welcome judgment
for the construction industry, especially unpaid
parties as they are not strictly bound by their
pleaded case, particularly with regard to the
remedies sought. However, this decision
should not be used as a general principle for
unpaid parties to broaden their claim against
non-paying parties, bearing in mind the
application of Section 27(1) of the CIPAA.
An appeal against this decision is pending
before the Court of Appeal.
Endnotes
(1) [2021] MLJU 376.
Gan Partnership - Min Lee Tan, Yuen
Wah Foo

30 | P a g e
UK ADJUDICATORS EDINBURGH
ADJUDICATION & ARBITRATION
CONFERENCE – 5 MARCH 2021
The UKA 2021 Edinburgh Adjudication &
Arbitration Conference took place online on
the 5 March 2021 and had over 900
registrations for the free conference. Many
thanks to all of the speakers and supporting
organisations.
The conference video can be viewed at:
https://www.ukadjudicators.co.uk/resources
TCC COURT JUDGEMENTS
April
• Beattie Passive Norse Ltd & Anor v
Canham Consulting Ltd [2021] EWHC
1116 (TCC) (30 April 2021)
• Boxwood Leisure Ltd v Gleeson
Construction Services Ltd &
Anor [2021] EWHC 947 (TCC) (19 April
2021)
• Celtic Bioenergy Ltd v Knowles
Ltd [2021] EWHC 1352 (TCC) (19 April
2021)
• Dana UK Axle Ltd v Freudenberg FST
GmbH [2021] EWHC 1027 (TCC) (23
April 2021)
• Delta Fabrication & Glazing Ltd v
Watkin Jones & Son Ltd [2021] EWHC
1034 (TCC) (30 April 2021)
• Good Law Project Ltd & Anor v
Secretary of State for Health and Social
Care [2021] EWHC 1223 (TCC) (22 April
2021)
• Good Law Project Ltd v Minister for the
Cabinet Office [2012] EWHC 1083
(TCC) (16 April 2021)
• Good Law Project Ltd v Secretary of
State for Health And Social Care [2021]
EWHC 1237 (TCC) (29 April 2021)

31 | P a g e
• Kang & Anor v Pattar [2021] EWHC
1101 (TCC) (28 April 2021)
• Prater Ltd v John Sisk & Son (Holdings)
Ltd [2021] EWHC 1113 (TCC) (30 April
2021)
May
• Beattie Passive Norse Ltd & Anor v
Canham Consulting Ltd (No. 2
Costs) [2021] EWHC 1414 (TCC) (28
May 2021)
• Dana UK AXLE Ltd v Freudenberg FST
GmbH [2021] EWHC 1413 (TCC) (26
May 2021)
• Davies & Davies Associates Ltd v Steve
Ward Services (UK) Ltd [2021] EWHC
1337 (TCC) (19 May 2021)
DRBF’S 20TH ANNUAL
INTERNATIONAL CONFERENCE AND
WORKSHOP
30 JUNE - 2 JULY 2021 LISBON,
PORTUGAL
https://www.drb.org/2021-06-lisbon-home-
page

32 | P a g e
FORTHCOMING EVENTS
Tuesday, June 8, 2021 - 6:30 PM
Causation in English Construction Law: time
for a re-statement?
Online
Chair: Professor Anthony Lavers
Speaker(s): David Sawtell, 39 Essex Chambers
For more info
Tuesday, June 15, 2021 - 9:00 AM
An Introduction to Delay Claims: Part 2
Chair: Rebecca Shorter (Partner, White &
Case)
Speaker(s): Valia Dousiou (Blackrock)
For more info
Thursday, June 24, 2021 - 5:00 PM
Making best use of the RIAI suite of contracts
Online
Moderator: Paul Darling QC
Speaker(s): Arran Dowling-Hussey, James
O'Donoghue, Chartered Architect, Bluett &
O'Donoghue, Dublin & Kilkenny & Niall
Meagher, Interactive Project Managers
(Dublin)
Venue: Online
For more info
Tuesday, June 29, 2021 - 9:00 AM
An Introduction to Quantum: Part 1
Speaker(s): Patrick Clarke (Atkin Chambers)
For more info
Monday, July 5, 2021 - 9:00 AM
BIM in 2021: a look at current and future
trends
Online
Moderator: Rory Kirrane SC, Mason Hayes &
Curran LLP
Speaker(s): May Winfield, Buro Happold;
Ralph Montague, Arcdox & David-John Gibbs,
Gammon Construction
Venue: Online
For more info

33 | P a g e
Tuesday, July 6, 2021 - 6:30 PM
Factual witness evidence: who needs it? (NLC)
London
Chair: Rowan Planterose, SCA President
Speaker(s): Roger Ter Haar QC and Kim
Franklin QC, Crown Office Chambers
Venue: National Liberal Club, 1 Whitehall Pl,
Westminster, London SW1A 2HE
For more info
Tuesday, July 6, 2021 - 6:30 PM
Factual witness evidence: who needs it?
(Online)
Online
Chair: Rowan Planterose, SCA President
Speaker(s): Roger Ter Haar QC and Kim
Franklin QC, Crown Office Chambers
Venue: Online
For more info
Tuesday, July 13, 2021 - 9:00 AM
An Introduction to Quantum: Part 2
Speaker(s): James Morris (Partner, Mayer
Brown) & Sue Kim (Director, HKA)
For more info
Wednesday, July 28, 2021 - 6:00 PM
EU litigation after Brexit
Chair: Alison Garrett, Mills & Reeve LLP
Speaker(s): Jennifer Jones of Atkin Chambers,
Mathias Cheung and Caroline Greenfield
For more info
Thursday, August 5, 2021 - 5:00 PM
SCL Networking Evening
London
Venue: The Yacht London, Upper Deck, Temple
Pier, Victoria Embankment, London WC2R 2PN
Full details in this flyer
For more info
Tuesday, September 7, 2021 - 9:00 AM
An Introduction to Disruption Claims
Speaker(s): David Coyne (Associate Director,
Blackrock) & Tom Andrews (Senior Associate,
Osborne Clarke)
For more info

34 | P a g e
SCL INTERNATIONAL CONFERENCE
2021
The Society of Construction Law 9th
International Conference has been postponed
till November 2021. The Right Honourable Lord
Justice Coulson will be a keynote speaker at the
Conference.
http://www.constructionlaw2021.com/scl21

35 | P a g e
SCL INTERNATIONAL CONFERENCE
2021
The Society of Construction Law 9th
International Conference has been postponed
till November 2021.e Right Honourable Lord
Justice Coulson will be a keynote speaker at the
Conference.
http://www.constructionlaw2021.com/scl21

UK Adjudicators Newsletter June 2021

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UK Adjudicators Newsletter June 2021