George Elliman

+44 (0)1733 887618 grelliman@greenwoodsgrm.co.uk

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Lorna Carter

+44 (0)1223 785299 lecarter@greenwoodsgrm.co.uk

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Case Update: An important decision from the TCC on adjudication during COVID-19

Construction / 30 April 2020

Our construction team discusses the recent decision in MillChris Developments Limited v Waters, which set down an early benchmark for how the TCC may treat applications centred around COVID-19.

The facts

– Waters (the respondent here) commenced an adjudication against MillChris (the applicant) on the 23 March 2020, alleging defective works and an overcharge of £45,000.

– The adjudicator asked for the submission of evidence by 3 April and a site visit on 14 April.

– The applicant argued that it could not comply with these timeframes due to COVID-19 lockdown measures. The adjudicator suggested a two-week extension to the timetable, but this was not agreed, leading to this application for an injunction preventing the adjudication.

– The applicant argued that the adjudication on the current timetable would be a breach of natural justice due to lack of time to prepare: alleging that the applicant’s solicitor was self-isolating meaning (a) they could not obtain evidence and (b) they could not attend the site visit.

The decision

No injunction was granted. The judge wholly rejected the argument that there would be a breach of natural justice if the adjudication continued during COVID-19 lockdown measures. No evidence was provided by the applicant to explain why the self-isolating solicitor could not receive key documents by post or electronically, and the alleged prejudice of not being able to obtain evidence was down to delays unrelated to COVID-19. Finally, there was also no right for the parties to attend the site visit.

The message

So, the message here is that attempts to use COVID-19 as a ‘catch-all’ delaying tactic in adjudication will likely not be persuasive to the TCC. As always, that isn’t to say that different facts may bring a different result. Consider, for example, if a party to the dispute (or a key witness), was incapacitated?

Can I start an adjudication?

From our team’s experience, it is still ‘business as usual’ as far as the adjudication system goes – RICS continue to accept adjudication referrals though its Dispute Resolution Service and there has so far been very little in the way of disruption. Adjudication does not normally require hearings or indeed, site visits, but rather the exchange of submissions to the adjudicator who will then make their determination. In this sense, adjudication could potentially be looked at as a natural fit for our current ‘work from home’ culture.

If you would like to talk about your options for resolving disputes at this time, including by adjudication, our team are here to help.

Visit our Coronavirus Resource Hub for insight and guidance to help you and your organisation during this complex time.

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