This episode includes:

• 00’30” – Introduction to the different dispute resolution forums. 
• 01’00” – Litigation – going to court to resolve a dispute.
• 03’30” – Arbitration – a private forum which will use standard rules or those determined by parties to the dispute. 
• 05’40” – Binding: What does a ‘binding’ decision involve? How can you ensure you get the money you’re owed?
• 07’00” – Adjudication as opposed to arbitration – what are the differences and how does construction adjudication work?
•  11’30” – What happens if you don’t like the outcome of an adjudiction decision?

If you have any questions or would like to talk about any of the issues raised in the podcast please get in touch with the team today – www.overford.com. You’ll also find this and other episodes of the podcast on your usual podcast player.

Thank you for listening to the Overford podcast. Every effort is taken to ensure the podcast’s accuracy, but its content should not be construed as legal advice.

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What happens if there’s a ‘fallback’ or second application stage? Is that good for the construction project and the parties in the project? 

What does an application for payment look like or need to look like? And what about contractual language – what do all the different terms – certification, payments, sums, true valuation, and other jargon mean? 

What happens next if you lose a smash-and-grab or ‘true value’ adjudication? Can you recover from a technical adjudication in, for example, a subsequent adjudication? 

What about payment? How successful is enforcement and is it easy to actually get paid when an adjudication decision has been reached? And who pays the fees of the adjudicator – does the referring party have to pay those up front? 

Find out the answer to all these questions and more in this episode of the Overford podcast. For more on Smash and Grab, read this article, and as always, if you need help just get in touch with the team today.

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A bit more on the club:

Founded as Warrington Zingari Football Club in 1876, they are one of the original twenty-two clubs that formed the Northern Rugby Football Union in 1895 and the only one that has played every season in the top flight. They are nicknamed “The Wire” in reference to the wire-drawing industry in the town.

Warrington have local rivalries with Widnes, St Helens and Wigan. They have won three league championships and are the fourth most successful team in the Challenge Cup with nine victories, behind Wigan, St Helens and Leeds. Their most successful season came in 1953–54 when they completed a championship and Challenge Cup ‘double’, beating Halifax twice in the space of four days to first win the Challenge Cup 8–4 in a replay at Odsal, then clinch the championship 8–7 at Maine Road.

Thanks to Wikipedia for the above, and we look forward to seeing how the team get on during the rest of the season – come on the Wires!

And as always, if you need any support reducing risk on your projects and tackling the challenges of construction, get in touch today.

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The late Max Abrahamason, a well-known engineer and expert noted that anyone involved in a construction project would soon learn the importance of “records, records, and more records” – but should you record absolutely everything? The importance of recording the right thing in the right way rather than everything all the time may be crucial to success.

The team look at a range of options for record keeping. The options discussed range from harnessing drone technology, geotags and use of tablets, through to the tried tested paper records. They look at the critical importance of regular and consistent record keeping.

Should we see a return to the clerk of works? What do different contracts say about record keeping? Find out in the latest podcast from Overford.

Subscribe to the podcast through your usual podcast source – search ‘Overford’ in your player. We’re on iTunes, Spotify, Google podcasts , and more. And if you need any help with record keeping or anything else, get in touch today.

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In this episode, Guy and Jason have a chat about the role of experts. Looking at everything from the importance of conflict checks and impartiality through to the different types of experts. They will discuss why training is so important. Guy and Jason start by looking at appointing a part 35 expert.

If you have any ideas for topics or maybe you’d like to join as a guest on the Overford podcast, do get in touch.

You’ll find the podcast on all the usual players, including Spotify, Apple podcasts and Google podcasts, simply search for Overford in the podcasts area of your chosen app or site.

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Overford’s expert team can assist with every aspect of your construction challenges, from advice and guidance to support in dispute resolution. Mediation is the latest tool in our armoury, with our resident expert, Guy Jackson.

Guy provides neutral support to clients. As an associate organisation of Mediator Network, you can now access top-quality mediation and other resolution services.

What is Mediation?

Mediation is an alternative to some of the more formal or complex methods of dispute resolution. We will have a detailed explanation on our site very soon. The process allows for an independent impartial party (a mediator) to help resolve a dispute. The mediator mutually resolves conflict, without the need to recourse to formal (and often costly) legal proceedings.

Mediation Tailored for You

Mediation is something we have been supporting for many years. We understand the commercial and pragmatic need for you to get your project back on track. Overford’s sector expertise and understanding will help you navigate towards amicable, realistic, and achievable solutions.

We will spend time with you to understand the issues and what matters to you. Working with us for your mediation will provide peace of mind. Whilst we cannot provide advice in mediation, tapping into our expertise on a neutral basis will help you move forward.

Our Mediation Model

The model is flexible and meets the needs of busy professionals. You can access a shorter mediation for a couple of hours or a half day or a day or more. We offer in-person and remote mediation services and a blended approach to accommodate your needs. We’ll provide you with an estimate of time needed with no hidden costs or unexpected fees.

Papers and Preparing for Mediation

We’ll hold confidential consultations with each person ahead of the mediation and work with you to be fully prepared.

Mediation is not a legal process. We may need some documentation to help everyone understand the points in issue, but we will not be reviewing evidence. Everything remains confidential and nothing can ever be shared outside of the mediation.

To achieve this, we will ask you to sign the “Agreement to Mediate”. This sets out the rules of mediation including the principle of confidentiality. It covers all communication and correspondence leading up to and including the conclusion of the mediation. In addition, we will be governed by our terms of business and RICS regulation.

Neutrality Throughout Mediation

Mediation is a neutral process. As a result of our partnership with Mediator Network, where we act or have previously acted for a client, we can provide an alternative. The aim is to provide you with the highest quality of resolution services.

As mediation is voluntary, all those involved in the dispute need to agree to engage with the process. Sometimes, encouragement is needed. This can come from a confidential discussion with our team or a direction from a formal process such as the commencement of litigation.

The Mediation Session

We work with you to facilitate your mediation in the most appropriate manner. Where a joint meeting is suitable, we suggest including one, but alternatives are available if needed.

You may need a few hours for a round-table discussion, or you may need a day or longer to work out complex issues and practical steps to move forward. Either way, we’ll work with you to achieve resolution in the best way for everyone involved.

The time is available for use in single or multiple sessions. We can focus on specific items or a range of issues at different stages. We’ll be walking with you through the process and providing our full support throughout.

We understand that sometimes you may need to re-visit some issues that remain unresolved. We can check-in with you after the mediation has been concluded to ensure that everyone is on track or provide support to achieve the same.

Mediation Outcomes and Legal Standing

We’ll help you achieve tangible outcomes and clarity as to next steps and a way forward. If you have legal professionals involved, they may draft a formal agreement which you can sign. If the parties reach a settlement agreement, the outcomes achieved are contractually enforceable.

When to Use Our Mediation Services

Mediation is available to resolve conflict or a dispute that has crystallised. However, you do not need to wait for conflict to escalate to use our services. Bring us in early for a discussion to head off issues before they become a dispute.

If you have something which may need our support, please pick up the phone and let’s have an initial and confidential call to discuss your options. We may even be able to help you diffuse the situation without further intervention.

For more help and a no obligation chat, get in touch with one of the team today.

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As we discussed in a previous article, ‘statutory’ adjudication allows anyone with a valid construction contract to take a dispute to an independent decision-maker – the adjudicator. They will reach a temporarily binding resolution, and the process is usually dealt with in a 28-day period.

Smash and Grab (also known as ‘technical’) adjudications sound very exciting, compared to most things in construction law! They conjure up images of contractors stealthily turning up in masks, with stripey shirts and a bag marked ‘swag’.

The reality is sadly a little more pedestrian…

The Reality

Smash and grab is actually not quite as exciting as all that. In fact, why it’s called ‘smash and grab’ is a bit of a mystery. We believe it was first coined in one of the early cases in which the mechanism was used.

However, it’s actually just the administration of the contract (or lack of) in accordance with the law, but often to the contractor’s advantage.

The Construction Act provides that in the absence of a payment notice from the employer to the contractor, the contractor may issue a ‘default payment notice’. Depending on the terms of the contract, a contractor’s application for payment may become the default payment notice. Alternatively, the contractor may give the payer a notice any time after the contract states, for the issue of an employer’s payment notice.

Note that the same principles apply throughout the construction supply chain. So whoever the employer/contractor relationship applies to, the same principle applies.

Why Do We Care?

For a number of reasons.

Firstly, this has been identified as a useful way for a contractor (or sub-contractor) to get a successful result financially, without really having to do much themselves. If the employer is not on the ball or has not paid attention to the contract terms, payment might become due. If a notice is not issued in the correct form and/or no payment is not forthcoming, an adjudication will be decided on those terms. This could be seen as a technicality. Which to some employers seems a little unfair.

It has been hotly debated. Because of the many ways in which such a technicality can be put forward, there have been several cases which have sought to exploit, and in turn, rebut the arguments for payment.

Some of these cases, which you might like to take a look at, include the following. Helpfully good law firms have explained why each one is relevant, so we don’t have to…

• Downs Road v Laxmanbhai – see Fenwick Elliott’s case note.
• Grove v S&T – note from Gatehouse Chambers.
• Davenport v Greer – from the good folk at Prettys.

So What Do We Need to Know About Smash And Grab Adjudication?

The key here is to ensure, as an employer – whether as main contractor or contract administrator, or any superior contract role – that you understand the contract terms. This is something any good solicitor will always tell you. Understand the payment and notice terms, along with what and in what form your notices must be issued. Above all, ensure you meet those requirements. Otherwise, there is a risk that sums claimed become due by default, whether or not they should be due.

And as always, if you need advice on resolving a dispute either at final account or any other stage in the process, we and our solicitor friends will be delighted to help. Contact us through the website. 

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