Tuesday, January 28, 2014

Construction Contracts Act 2013

Apologies once again to all followers to this blog for my demonstration as the laziest blogger of all time. I will definitely make it a new years resolution to beat my number of posts of last year.

Anyhow, just in from the Adjudication Society conference this morning where widespread discussion on the possible new Adjudication coming into our industry.

As far back as 2011 we were a bit negative here towards some aspects and some of the mechanisms of this new Construction Bill (in the draft format it was in at the time) and after today's overview I would say that this negativity has only increased.

Many holes were picked through the Act by the expert and experience speakers:

Some of these are summarized from my notes as follows:

  1. Unclear if 'paid when certified' will be a loophole that can be exploited and the Act is silent on this,
  2. The terminology is not linked to contract 'speak', i.e. the term 'Payment Claim' is new,
  3. Payment Claim Notice is silent on time,
  4. Act mentions 'subject matter' of a claim, fruitful exploitation for lawyers here as this could be anything?
  5. With holding notice by the payer - this will generate additional administration for payers,
On top of all this the final after lunch talk given by a highly eminent Judge was damning to say least. His focus was mainly on section 6 of the Act. 

S.6 part 9 states that 'initiative' is to be used by an adjudicator. This wording is weak as far as the Judge is concerned and the wording here should have been drafted better. The Judge also did not like the temporary binding nature of the Act as set out in S.6 part 10. In fact the Judge went as far as to state that 'bad law' could be pleaded by a party in order to thwart the whole process.

I hope to revert back to this whole subject in more detail later. Like everyone else this is all new and thus more information gathering is necessary.

I also understand that another Judge will be giving a view on this tomorrow evening in Engineer's Ireland which will be interesting.

Time will tell how this Act will be implemented, if implemented at all!

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