Training Programme Dispute Resolution 1. Housing Grants Construction and Regeneration Act 1996 1.1 Overview & Scope of the Act General Construction Contracts Construction Operations Value Limits Residential Dwellings Formalities Structure of the Act 1.2 Adjudication Common Law Adjudication Statutory Adjudication Disputes and Differences Adjudication - Required Terms Notice - Section 108(2)(a) Appointment of Adjudicator - Section 108(2)(b) Adjudicator's Decision - Section 108(2)(c), (d) Adjudicator's Duty to Act Impartially - Section 108(2)(e) Inquisitorial Approach - Section 108(2)(f) Finality of Decision - Section 108(3) Adjudicator Immunity - Section 108(4) Nature of Adjudication Choice of Adjudicator Adjudicator's Fees Duration of Adjudicator's Appointment Procedures for Operation of Adjudication Adjudication Rules 1.3 Resolution of Disputes, Stage Payments and Dates for Payment and Withholding Payment Resolution of Disputes Stage Payments and Dates for Payment Common Law - Right to Payment Statutory Right to Interim Payment - Section 109 Dates for Payment - Section 110(1) Dates for Payment - Section 110(2) Withholding Payment Common Law Right of Set-Off Statutory Restriction of Right to Set-Off Present Practice of Set-Off 1.4 Suspension of Work, Pay When Paid,Service of Notices, Professional Services and Transitional Provisions Suspension of Work Common Law Statutory Right to Suspend Performance for Non-Payment Present Practice - Suspension/Determination Pay When Paid Common Law Statutory Prohibition of Conditional Payment Provisions Present Practice of Payment Service of Notices Professional Services 2. Adjudication: How to Reduce Cost and Maximise the Result (Half Day) 2.1. Should I Start an Adjudication? Getting the wrong answer can be a costly mistake. The following issues are dealt with by reference to cases and practical common sense. - The Importance of the Matter - The meaning of Dispute - The effect of Contract procedures - The effect of previous adjudication decisions - The Limitation Period - The Unfair Terms in Consumer Contracts Regulations 1999 - The Financial Position of the Parties. 2.2. What Should I Do Before an Adjudication? The right steps taken before the adjudication commences will determine the level of costs and the chances of success and will reduce the time personnel are kept from the main business. The following 8Cs are explained. - Concluding the Argument - Choosing the Issue - Constructing the Logical Argument - Compiling the Documents - Crucial Evidence - Consequence Analysis - Condensing the Evidence - Choosing the Adjudicator. 2.3. What if a Party Believes the Adjudicator Lacks Jurisdiction? An early decision must be made whether or not to challenge the adjudicator's jurisdiction.  If challenged both parties will need to consider whether or not to proceed with the adjudication. The factors that need to be considered, the steps that must be taken and the pitfalls to avoid are reviewed. 2.4. What Should I do During the Adjudication? The Adjudicator is master of the procedure but must follow the rules of natural justice. The following are examined: - Submissions - Response to Submissions - Unsolicited Submissions - Without Prejudice Information - New Evidence and Arguments - Meetings with the Adjudicator 2.5. What Should I Do When I Receive the Adjudicators Decision? The minimum essential steps to be taken are described. 3. Adjudication: Practice and Update Morning Session 3.1 Before Commencing Adjudication Should I Start an Adjudication? What are the Key Practical Questions to Answer Before Starting Adjudication? Should I Start an Adjudication if a Party is in Financial Difficulties? Can I Start an Adjudication? What is the Meaning of "dispute"? Which Types of Contract are affected by the HGCR Act? Are Contracts Required to be in writing and if so, what does "in writing" mean? What is a "Construction Contract"? What is a "Construction Operation"? If the Main Contract is not a "Construction Contract" are all SubContracts outside the Act? Are Residential Dwellings Covered by the Act? Can the Unfair Contracts Act 1977 Exclude the Right to Adjudication? If one of the Parties is not UK based, or the law of the contract is not English Law, is the Contract covered by the Act? Do the Adjudication Provisions Survive the Termination of the Contract? 3.2 Preparation of Submissions What Matters Can be Referred to Adjudication? Can a Dispute Under a Compromise Agreement be Referred to Adjudication? What Should Be in the Notice of Adjudication? What Should Be in the Notice of Referral? Should Witness Statements Be Prepared and What Form Should They Take? Should Expert Reports Be Prepared and What Form Should They Take? What Should Be in Any Response? Afternoon Session 3.3 Starting the Adjudication When can Adjudication be Commenced? How Is the Adjudicator Appointed? If the Appointment Procedure is Not Followed, Should the Adjudicator Resign? When Should the Adjudicator Refuse an Appointment? If One Party Considers that the Adjudicator has no Jurisdiction, What Should He Do? What are the Requirements for Notice under the Act? How are Periods of Time Calculated under the Act? 3.4 The Conduct of Proceedings What Adjudication Procedure Applies? How should the Adjudicator Conduct Proceedings? How Should the the Adjudicator Investigate the Facts? Can the Adjudicator Exclude Evidence? How Should the Adjudicator Investigate the Law? Can the Adjudicator Exclude New Arguments? If the Adjudicator Receives Without Prejudice Information What Should He Do? How Should the Adjudicator Conduct Meetings? 3.5 The Decision On What Basis Should the Adjudicator Make His Decision? Is the Adjudicator Required to Give Reasons? Can the Adjudicator Award Interest? Can the Adjudicator Decide the Costs of the Parties? Can the Adjudicator Apportion His Fees? What Form Should the Decision Take? How Should the Decision Be Served? Can the Adjudicator Require Payment of His Fees Before Issue of the Decision? If the Decision is Late, is it Still Valid? What Should a Party Do if He Believes the Adjudicator Has Made a Mistake?