Concilliation and Adjudication Flashcards
Concilliation source
LRC on Alternative Dispute Resolution: Mediation and Concilliation 2010
Concilliation Defined
‘an advisory, consensual and confidential process, in which parties to the dispute select a neutral and independent 3rd party to assist them in reaching a mutually acceptable agreement’
Adjudication Source
Department of Enterprise, Trade & Employment
Adjudication Definition
Provides a mechanism for the swift resolution of payment disputes where the dispute is referred by one of the parties to an independent 3rd party, who will decide on the dispute
Construction Contracts Act 2013
Statutory adjudication to cope with the financial crash. Mechanism to resolve disputes quickly and efficiently.
Advantages
- Efficiency
- Interim but binding
- Protects third parties
- Enforcement
- Cost
Disadvantages
- Interim, not final
- Limited scope
- Breach of fair procedures
- Satellite Litigation
- Cost
Efficiency
s.6(6) - 28 days & 14 more
Meenan J - Principal v Beneavin 2020 - delay of traditional process
UNCITRAL model
Interim but binding
s.6(10) interim nature
‘pay now, argue later’ - Jacob Construction 2022 (Simons J)
Macob Engineering v Morrison 1999 - still binding even if ruling is later found to be wrong (Dyson J)
Protects Weaker Parties
s.2(5)(b) prohibits contracting out
s.3(5) prohibits ‘pay when paid’ clause
Lynch-Fannon Kennedy 2012 - legislative intervention justifiable
High Enforcement
Gravity Construction 2020 - first HC enforcement (90 days)
Introduced Practice Direction HC105
‘blatant or obvious’ breach - JP Construction
Cost
s.9 CCA 2013 - Code of Practice Governing Conduct of Adjudicators - time complexity & amount
Interim, not final
parties have to risk repayment - JP Construction
temporary relief
Limited Scope
Disputes over 1000
Dwellings over 200sqm
No public/private contracts
No contracts where one party resides/ intends to reside
Fair procedure
Sir Peter Coulson, Construction Adjudication 2020 - right to fair trial contested
Satellite Litigation
Aakon Construction v Pure Fitout 2021 - leverage to trigger ‘pay now’
Cost
6th Annual Report of Implication of CCA 2013 (Bernard Gogarty)- 104,000 adjudication costs
Conclusion
CCA 2013 represents a largely successful reform, promoting payment and protecting subcontractors. Effective procedure for resolving payment disputes in sector where cash flow is vital. Limitations mean it should be viewed as one element in a broader dispute resolution process.
