Adjudication Practice and Procedure in Ireland: Construction Contracts Act 2013 PDF
Preview Adjudication Practice and Procedure in Ireland: Construction Contracts Act 2013
Adjudication Practice and Procedure in Ireland This adjudication textbook uniquely brings together a comprehensive analysis of, and commentary on, the Construction Contracts Act 2013 with a real-world perspective of adjudication, considering the knowledge, process and skills parties and adjudicators require in order to successfully participate in the adjudication process. Drawing on combined experience of 40 years in construction law, the authors provide invaluable guidance for all stakeholders in the adjudication process. The authors analyse and comment on the adjudication provisions of the Construction Contracts Act and describe prudent practice and procedure required to comply with Irish adjudication law, including case studies, case law and sample documentation for those to be involved as the parties, or those who want to act as adjudicators. Aimed at contractors, sub-contractors, developers, employers, construction, engin- eering and legal professionals and students, all of whom are either involved, or have an interest, in dispute resolution and adjudication. Damien Keogh is ranked as one of Ireland’s leading construction lawyers. He is a Fellow of the Chartered Institute of Arbitrators, a lecturer in Arbitration Law at Trinity College Dublin and the Law Society of Ireland and frequently acts as an arbi- trator in both domestic and international commercial arbitrations. Damien is also an Accredited Mediator with the Centre for Effective Dispute Resolution (CEDR) and the Chartered Institute of Arbitrators (CIArb). Niall Lawless is a Chartered Arbitrator and Engineer, Adjudicator and Mediator, and he has been involved with resolving international commercial disputes valued in excess of US$50 million. Niall is a Fellow of the Chartered Institute of Building, the Chartered Institution of Building Services Engineers, the Chartered Institution of Mechanical Engineers, the Chartered Institute for Information Technology (British Computer Society) and the Chartered Institute of Arbitrators. Niall is a Chartered Institute of Arbitrators Construction Adjudication and Mediation Course Director, Tutor and Assessor. Moreover, Niall has coached gold medal international teams in a wide spectrum of dispute resolution competitions. For six years, Niall chaired the Construction Industry Council’s ADR Management Board and was responsible for leading the production of CIC ADR publications including the CIC Users’ Guide to Adjudication: Ireland. He is a strong voice in the industry with articles and commen- taries published on various international platforms. Adjudication Practice and Procedure in Ireland Construction Contracts Act 2013 Damien Keogh and Niall Lawless Firstpublished2020 byRoutledge 2ParkSquare,MiltonPark,Abingdon,OxonOX144RN andbyRoutledge 52VanderbiltAvenue,NewYork,NY10017 RoutledgeisanimprintoftheTaylor&FrancisGroup,aninformabusiness ©2020DamienKeoghandNiallLawless TherightofDamienKeoghandNiallLawlesstobeidentifiedasauthors ofthisworkhasbeenassertedbytheminaccordancewithsections77 and78oftheCopyright,DesignsandPatentsAct1988. Allrightsreserved.Nopartofthisbookmaybereprintedorreproduced orutilisedinanyformorbyanyelectronic,mechanical,orothermeans, nowknownorhereafterinvented,includingphotocopyingandrecording, orinanyinformationstorageorretrievalsystem,withoutpermissionin writingfromthepublishers. Trademarknotice:Productorcorporatenamesmaybetrademarksor registeredtrademarks,andareusedonlyforidentificationandexplanation withoutintenttoinfringe. BritishLibraryCataloguing-in-PublicationData AcataloguerecordforthisbookisavailablefromtheBritishLibrary LibraryofCongressCataloging-in-PublicationData Acatalogrecordhasbeenrequestedforthisbook ISBN:978-1-138-02030-6(hbk) ISBN:978-1-315-67531-2(ebk) TypesetinBembo bySwales&Willis,Exeter,Devon,UK Contents Acknowledgements vii Foreword viii Tableofcases x Tableofstatutes xxiii PART1 ConstructionContractsAct2013 1 1 Introduction 3 2 OverviewoftheConstructionContractsAct2013 5 3 Whatconstitutesaconstructioncontract? 7 4 Exemptedcontracts 35 5 TheRighttoreferpayment-relateddisputestoadjudication 51 6 Adjudicatorappointment 96 7 Referraltotheadjudicator 118 8 Timingoftheadjudicator’sdecision 134 9 Theadjudicator’srole,responsibilitiesandpowers 144 10 Thecontentandenforceabilityoftheadjudicator’sdecision 164 11 Adjudicationcosts 183 vi Contents 12 TheCodeofPracticeGoverningtheConductofAdjudications 192 13 Serviceofnotices 196 14 Enforcingtheadjudicator’sdecision 201 PART2 Areal-worldperspectiveofadjudication 205 15 Knowledge 207 16 Process 250 17 Skills 308 AppendixA:ConstructionContractsAct2013 358 AppendixB:CodeofPracticeGoverningtheConductofAdjudications, 25thJuly2016 371 References 384 Index 389 Acknowledgements Damien Keogh wishes to thank his wife Kristin for all her support throughout and, in particular, assistance with the early drafts, and also Stephen Hanaphy BL for the independent review he provided for the final edit. Damien Keogh and Niall Lawless thank Sanja Tseveenjav for her editorial guidance and support. Foreword On 13 April 2016 the Minister for Business and Employment signed the neces- sary commencement order to enable the Construction Contracts Acts, 2013 (“theAct”)tocomeintoforceandeffect.Asfrom25July,2016,theActapplies toallconstructioncontractswithinthestatutorydefinitionofthatterm.TheAct brings in new rules relating to payments and in relation to the adjudication of payment disputes. It is with regard to the latter aspect of the Act that this new work by Damien Keogh and Niall Lawless is directed. As a consequence of the provisions of the Act dealing with adjudication, there is now a new legal frame- work in place which parties to construction contracts (and those who advise them) willhavetoaddress. As the Act begins to be utilised, there will undoubtedly be a learning pro- cess for participants in the construction industry and their advisors. In due course, as parties seek to enforce adjudication awards, there will also be a learning process for the courts. That process has now been made significantly less onerous for all concerned thanks to the generosity of the authors in shar- ing their extensive knowledge and expertise in this book. The book falls into two quite distinct – yet interrelated - parts. The first part ofthebook(writtenbyDamienKeogh)takesamicroscopetotheprovisionsofthe Actdealingwithadjudicationandprovidesadetailedcommentaryonthemwith extremely helpful and extensive reference to decisions of the courts of the United Kingdom in relation to similar provisions in the equivalent legislation in the U.K. The work undertaken by Damien Keogh will be of enormous assist- ance to anyone seeking to understand how the provisions of the Act should be interpreted and applied. In fact, it will be an essential point of reference for par- ties,practitioners,adjudicatorsandthecourts. The second part of the book (written by Niall Lawless) offers a unique insight intothe thought processesof an expert adjudicator. Niall Lawless bringshis very considerable practical experience and expertise to bear in offering masterful views as to how parties, advocates and adjudicators might best grapple with the adjudication process and use it to full advantage. It offers a thought provoking andilluminatingperspectiveontheadjudicationprocess. Each part of the book complements the other. The reader gets the benefit of two books in one. Crucially, the book offers the reader invaluable guidance Foreword ix and assistance in understanding and applying the adjudication provisions of the Act. New legislation will often give rise to teething problems for those having to apply it for the first time. However, with the benefit of this book, those teething problems will be minimised. The treatment of the UK case law is extremely helpful in this context. It will save the reader hours of difficult and time-consuming research. I have no doubt that the book will become the definitive guide to the adjudicationprovisionsoftheActandIwishtheauthorseverysuccesswithit. Denis McDonald The High Court Four Courts Dublin 7 16 April, 2020
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