<![CDATA[Kelliher & Associates ADR (Adjudicator, Arbitrator, Mediator, Conciliator) - Blog]]>Tue, 13 Jan 2026 03:48:26 +0000Weebly<![CDATA[Ninth Annual Report of the implementation of the Construction Contracts Act 2013]]>Thu, 20 Nov 2025 22:55:02 GMThttps://www.adjudicator.ie/blog/ninth-annual-report-of-the-implementation-of-the-construction-contracts-act-2013That time of the year again and the later than usual report in respect of the ninth year of adjudication in Ireland has arrived (The Construction Contracts Act 2013 came into force for any construction contract entered into after the 25th of July 2016, therefore this date is the end of each yearly cycle) in respect to the year that ended in July 2025. The Department of Enterprise on behalf of the Chair of the Ministers panel of Adjudicators, Mr. Bernard Gogarty, has issued the yearly report in respect to the activity through the panel in the year to end July. The report outlines some detail in respect to the use of adjudication through the panel, and it also includes some information, where adjudicators chose to submit statistical returns in respect to any adjudications where the Ministers Panel were not the appointing body. It can therefore only give a snapshot in respect to where adjudication usage actual sits. One item that continues to jump from the report is the fact that despite the requirement to return the statistical data sheets to the department, it is clear from the numbers that some Adjudicators are not submitting those returns. So, what does it tell us...
 
Use of Adjudication

The latest report highlights a slight decrease on the previous year (the year 8 report detailed the highest case numbers since the legislation was introduced) in the in the use of Adjudication in Ireland with a 16% decrease year on year in the number of applications to the panel. From a low base of one application in Year 1, to 11 in Year two, Year three had 39, Year 4 had 54, year 5 had 51, year 6 had 81, year 7 had 61, year 8 had 101 and now year 9 sees a slight reduction down to 85 applications to the panel for appointment of an adjudicator. A similar 15% decrease was also recorded in actual appointments year on year from 0 in year 1, to 9 in year 2, to 32 in year 3, 46 in year 4, a drop to 37 in year 5, increase to 71 in year 6, a decrease to 57 in year 7, a jump to 93 in year 8 and now a small fall back to 79 in Year 9. There were two non-compliant applications.
Adjudicators
Quantity Surveyors continue to lead at the top of the yearly leaderboard as the profession with the highest number of appointments with 37% (22) of all appointments with Architects retaking second place with 24% (14). There is a gap back to Fellows of the CIArb at 15% (9), Solicitors closely behind at 12% (7) and Barristers with 10% (6) with Engineers completing the list of professions at 2% (1). Except for the Engineering profession, the breakdown would appear to again show a spread of appointments across the professions in the year to July 2025.
The most common rate charged by adjudicators is now stated as set within a broad band width from €251 to €350 per hour, in a similar fashion to the previous report. The highest rate charged is recorded in the €500 plus per hour bracket where five cases are reported with one case also appearing in the €201-250 per hour bracket.
Parties in Dispute
It is no surprise that Subcontractor’s referring against the Main Contractor continues to lead the way in the number of disputes and this relationship was responsible for 44% of the cases on the panel. Main Contractors are also continuing to use the adjudication process as a resolution tool with 22% of cases referred by them against non-Public Body Employers and a further 8% between them and Public Body Employers. There is a record of only three cases (5%) been referred by Main Contractors against Subcontractors through the panel this year. Employers referring against Main Contractors were responsible for just two cases in year 9 and we continue to see the use by professional consultants that started in year 5, where a further seven cases were referred against their clients. There continues to be no reference to a Public Body having used adjudication against a contractor to date (although I am aware that we will see this change in year 10). In a confusing inclusion in the report, given the parties would not be in contract, we have four cases (7%) taken between a Subcontractor and an Employer.
In respect to the outcomes of decisions, the report includes for the first time, some further detail on success and a wider breakdown to include split decisions. The Referring Party were successful in 70% of reported cases with the respondent successful in 11% of cases and 19% of cases had a split decision issued. 
Location of Dispute


Dublin continues to have the largest number of disputes with 53% of cases located in the Capital. The only other county in double digits is Cork where 10% of cases are located. Galway leads the west with 7% and Cavan leads Ulster with 2%, with no other cases in the province. After the ninth year, Westmeath continues to be the only county that is yet to record a case on the system (a record that I know ended in year 10).
 
Values and Costs


In year 9, following on from a comparable situation in years 4 to 8 inclusive a value between €100-500k (13 cases) is the most common value awarded. The highest value recorded was in four cases where the award was between €1 million and €5 million.
One area of substantial reduction is in respect to the overall fees with no fee reported above €40,000 in the year and the highest number of cases resulting in a fee of less that year and the highest number of cases resulting in a fee of less than 10,000.
 
Conclusion
In a year which was following the record-breaking year 8 report, the numbers are still seeking growth and continued use of Adjudication in Ireland. Year 9 brings up a total of 484 applications through the panel since inception, which resulted in 424 appointments. In the nine years the value in disputes resolved through the process now stands at over €319 million. Adjudication is clearly now seen as a real option for the resolution of disputes in Ireland and it is highly likely with current market conditions that the numbers will continue at a similar level into year 10.
For a full copy of the annual report including copies of the previous year’s report please follow the link here to the Construction Contracts Adjudication Services Website.
 
Keith Kelliher is an Accredited Adjudicator, who has represented Main Contractors and Sub-Contractors in payment disputes for over 27 years in the Irish construction industry. Keith has represented numerous parties in the Adjudication process to date in Ireland from referral through to a decision. Contact Keith at kkelliher@adjudicator.ie for any assistance with the requirements of the ACT. This article is a commentary piece and does not constitute nor should it be relied upon as legal or professional advice.
]]><![CDATA[Launch of the SCSI Pupillage Scheme for Adjudicators]]>Thu, 13 Feb 2025 15:21:28 GMThttps://www.adjudicator.ie/blog/launch-of-the-scsi-pupillage-scheme-for-adjudicatorsIt is not often you get to succeed in launching a passion project but today I had the privilege of launching the SCSI - Society of Chartered Surveyors Ireland Pupillage Scheme for the next generation of hashtag#adjudicators in Ireland. The Scheme is a two staged approach of understanding and learning and one that for the first time in Ireland, provides a real opportunity to those interested in starting a career in hashtag#adr and hashtag#adjudication to get actual experience of the process. I thank the hashtag#adr committee of the SCSI, and all the adjudicators who have assisted in getting the programme to launch. I thank those adjudicators again for their commitments to take on pupils through the programme into the future. I do hope that our fellow professional institutes within the space might review and adopt the scheme so we can have a standard pupil programme across the industry and so it may be recognised in future panel appointments. A copy of the scheme is available in the comment section and will be available on the SCSI website shortly. 
scsi_pupillagescheme_web[2].pdf
File Size: 3705 kb
File Type: pdf
Download File
]]><![CDATA[Eighth Annual Report of the implementation of the Construction Contracts Act 2013]]>Sun, 22 Dec 2024 11:48:04 GMThttps://www.adjudicator.ie/blog/eighth-annual-report-of-the-implementation-of-the-construction-contracts-act-2013
In a release that is months later than usual and after the end of the eight year of adjudication in Ireland has come and gone (The Construction Contracts Act 2013 came into force for any construction contract entered into after the 25th of July 2016, therefore this date is the end of each yearly cycle) we have now, received the report in respect to the year that ended in July 2024. The Department of Enterprise on behalf of the Chair of the Ministers panel of Adjudicators, Mr. Bernard Gogarty, has issued the yearly report in respect to the activity through the panel in the year to end July. The report outlines some detail in respect to the use of adjudication through the panel, and it also includes some information, where adjudicators chose to submit statistical returns in respect to any adjudications where the Ministers Panel were not the appointing body. It can therefore only give a snapshot in respect to where adjudication usage actual sits. So, what does it tell us...
 
Use of Adjudication

The latest report highlights a marked increase in the in the use of Adjudication in Ireland with a 166% increase year on year in the number of applications to the panel. From a low base of one application in Year 1, to 11 in Year two, Year three had 39, Year 4 had 54, year 5 had 51, year 6 had 81, year 7 had 61 and now year 8 detailed a breaking of the century ceiling with 101 applications to the panel for appointment of an adjudicator. A 163% increase in actual appointments took place year on year from 0 in year 1, to 9 in year 2, to 32 in year 3, 46 in year 4, a drop to 37 in year 5, increase to 71 in year 6, a decrease to 57 in year 7 and now an increase to 93 in year 8. There was one non-compliant application and for the first time the report includes a reason, in this case the dispute did not relate to construction operations.

Adjudicators
Quantity Surveyors have retaken the lead at the top of the yearly leader board as the profession with the highest number of appointments with 34% (33) of all appointments with Barristers jumping to second with 17% (16) and Architects along with Fellows of the CIArb both at 15% (14).  Solicitors come in with 14% (13) and Engineers complete the list at 6% (6). This breakdown does again show a spread of appointments across all professions in the year to July 2024.

The most common rate charged by adjudicators is now stated as set within a broad band width from €201 to €350 per hour, a slight reduction in the band from the previous report. The highest rate charged is recorded in the €500 plus per hour bracket where five cases are reported with one case also appearing in the €101-150 per hour bracket.

Parties in Dispute
No surprise that Sub contractor's referring against the Main Contractor continues to lead the way in the number of disputes and this relationship was responsible for 45% of the cases on the panel. Main Contractors are also continuing to use the adjudication process as a resolution tool with 35% of cases referred by them against non-Public Body Employers and a further 7% between them and Public Body employers. There is a record of only two cases (2%) been referred by Main Contractors against Sub contractors through the panel this year. Employers referring against Main Contractors was responsible for just three cases in year 8 and we continue to see the use by professional consultants that started in year 5, where a further four cases were referred against their clients. There was 3 cases in year seven of subcontractors referring against other subcontractors. There continues to be no reference to a Public Body having used adjudication against a contractor to date. In respect to the outcomes of decisions, the Referring Party were successful on 50% of reported cases with the respondent successful on 28% of cases. 22% of cases had a split decision issued. 

Location of Dispute

Dublin continues to have the largest number of disputes with 56% of cases located in the Capital. The only other county in double digits is Kildare where 13% of cases are located. Munster is headed up by Cork who are responsible for 6%. Galway lead the west with only 1% and the remainder of the counties west of the Shannon reporting no cases in the year. There were no cases reported in Ulster in the year. After the eight year, only Westmeath remains as the county yet to record a case on the system.
 
Values and Costs

In year 8, following on from a similar situation in year 4, 5 , 6 and 7 a value between €100-500k  (27 cases) is the most common value awarded following closely by Nil (22 cases). The remainder of disputes are single digits across all categories. There highest value recorded was on two cases where the award was between €5 million and €10 million.
54% of cases resulted in a total adjudicator cost of less than €10k with a further 25% between €10k and 20k. 21% of cases had a final adjudicator fee of more than €20k over the period with the highest reported fee of between €85-89,999k.
 
Conclusion
In a year where applications have finally broken through the century ceiling for applications, the continued and growing use of Adjudication in Ireland continues. Year 8 brings up a total of 399 applications through the panel since inception, which resulted in 345 appointments. In the eight years the value in disputes resolved through the process now stands at over €288 million. Adjudication is clearly now seen as a real option for the resolution of disputes in Ireland and it is likely with current market conditions that the numbers continue to grow at the current level in year 9.
​
For a full copy of the annual report including copies of the previous year’s report please follow the link here to the Construction Contracts Adjudication Services Website.
 
Keith Kelliher is an Accredited Adjudicator, who has represented Main Contractors and Sub-Contractors in payment disputes for over 25 years in the Irish construction industry. Keith has represented numerous parties in the Adjudication process to date in Ireland from referral through to a decision. Contact Keith at kkelliher@adjudicator.ie for any assistance with the requirements of the ACT. This article is a commentary piece and does not constitute nor should it be relied upon as legal or professional advice.]]><![CDATA[Annual Report from the Chair of the Panel in respect to Year 7 of the Construction Contracts Act 2013]]>Thu, 26 Oct 2023 10:10:42 GMThttps://www.adjudicator.ie/blog/annual-report-from-the-chair-of-the-panel-in-respect-to-year-7-of-the-construction-contracts-act-2013A little later than usual and after the end of the seventh year of adjudication in Ireland has come and gone (The Construction Contracts Act 2013 came into force for any construction contract entered into after the 25th of July 2016, therefore this date is the end of each yearly cycle) we have today, received the report in respect to the year that ended in July 2023. The Chair of the Ministers panel of Adjudicators, Mr. Bernard Gogarty, has yesterday issued the yearly report in respect to the activity through the panel in the year to end July. The report outlines some detail in respect to the use of adjudication through the panel, but it does not include any information in respect to any adjudications where the Ministers Panel have not been the appointing body. It can therefore only give a snapshot in respect to where adjudication usage actual sits. So, what does it tell us...
 
Use of Adjudication

The latest report, highlights a reduction in the use of Adjudication in Ireland with a 25% reduction year on year in the number of applications to the panel. From a low base of one application in Year 1, to 11 in Year two, Year three had 39, Year 4 had 54, year 5 had 51, year 6 had 81 and now year 7 detailed 61 applications to the panel for appointment of an adjudicator. A 20% reduction in actual appointments took place year on year from 0 in year 1, to 9 in year 2, to 32 in year 3, 46 in year 4, a drop to 37 in year 5, increase to 71 in year 6 and now a decrease to 57 in year 7. There were also two non-compliant applications. Nothing is again noted in the report as to who or what has decided that an application is non-compliant other than the report notes that they were deemed to be non-compliant with the legislation or the application requirements set out in the ‘Code of Practice Governing the Conduct of Adjudications.’
 
Adjudicators

Architects have continued their maintenance at the top of the yearly leader board as the profession with the highest number of appointments with 31% (18) of all appointments with Quantity Surveyors coming up second with 17% (10) along with Fellows of the CIArb again at 17% (10), Solicitors now over taking Engineers at 14% (8) and Engineers at 12% (7). Barristers account for 9% of appointments (5). This does show a spread of appointments across all professions in the year to July 2023. The most common rate charged by adjudicators is now set within a broad band width from €201 to €400 per hour. The highest rate charged is recorded in the €451 to €500 per hour bracket where three cases are reported with two cases also appearing in the €151-200 per hour bracket and seven cases noted as no charge.

Parties in Dispute

No surprise that Sub contractor's referring against the Main Contractor continues to lead the way in the number of disputes and this relationship was responsible for 58% of the cases on the panel. Main Contractors are also continuing to use the adjudication process as a resolution tool with 21% of cases referred by them against non-Public Body Employers and a further 5% between them and Public Body employers. There is a record of only two cases (4%) been referred by Main Contractors against Sub contractors through the panel this year. Employers referring against Main Contractors was responsible for just one case in year 7 and we continue to see the use by professional consultants that started in year 5, where a further three cases were referred against their clients. There was 2 cases in year seven of subcontractors referring against other subcontractors and also a case of a subcontractor referring against an Employer. There continues to be no reference to a Public Body having used adjudication against a contractor to date. In respect to the outcomes of decisions, the Referring Party were successful on 67% of reported cases with the respondent successful on 22% of cases. 11% of cases had a split decision issued. 

Location of Dispute

Dublin continues to have the largest number of disputes with 53% of cases located in the Capital. For the first time since its introduction, there are now recorded cases in Donegal, Leitrim and Sligo. Munster is headed up by Limerick who are responsible for 7%. There is no leader in the west with with a couple of counties having 2% of cases in year 7. In Ulster, Donegal and Monaghan also lead the way with 2% of cases. Louth has the overall second highest number of disputes with 125 of cases. After seven year, only Westmeath remains as the county yet to record a case on the system.
 
Values and Costs

In year 7, following on from a similar situation in year 4, 5 and 6, a value between €100-500k  (13 cases) is the most common value awarded following closely by €30k-€50k (8 cases) and €50k to €100k (8 cases). There highest value recorded was one case where the award was between €500k -€1 million. 59% of cases resulted in a total adjudicator cost of less than €10k with a further 28% between €10k and 20k. 14% of cases had a final adjudicator fee of more than €20k over the period with the highest reported fee of between €30-35k.
 
Conclusion

It is probably not surprising to find a reduction in the number of applications to the panel in Year 7 on the back of the large jump that took place in Year 6. Year 7 had the second highest number of applications since the Act came into play. It was also noted that two adjudicators retired from the panel in the period bringing the number of Adjudicators available for appointments down to 33. Adjudication is clearly now seen as a real option for the resolution of disputes in Ireland and it is likely with current market conditions that the numbers continue to stay at the current level in year 8.

For a full copy of the annual report including copies of the previous year’s report please follow the link here to the Construction Contracts Adjudication Services Website.
 
Keith Kelliher is an Accredited Adjudicator, who has represented Main Contractors and Sub-Contractors in payment disputes for over 20 years in the Irish construction industry. Keith has represented numerous parties in the Adjudication process to date in Ireland from referral through to a decision. Contact Keith at kkelliher@adjudicator.ie for any assistance with the requirements of the ACT. This article is a commentary piece and does not constitute nor should it be relied upon as legal or professional advice.
]]><![CDATA[Adjudication in Ireland - Year 6 report of the Chair of the Adjudication Panel]]>Tue, 22 Nov 2022 16:33:03 GMThttps://www.adjudicator.ie/blog/adjudication-in-ireland-year-6-report-of-the-chair-of-the-adjudication-panelA little later than usual and after the end of the sixth year of adjudication in Ireland has come and gone (The Construction Contracts Act 2013 came into force for any construction contract entered into after the 25th of July 2016, therefore this date is the end of each yearly cycle) we have today, received the report in respect to the year that ended in July 2022. The Chair of the Ministers panel of Adjudicators, Mr. Bernard Gogarty, has today issued the yearly report in respect to the activity through the panel in the year to end July. The report outlines some detail in respect to the use of adjudication through the panel, but it does not include any information in respect to any adjudications where the Ministers Panel have not been the appointing body. It can therefore only give a snapshot in respect to where adjudication usage actual sits. So, what does it tell us...
 
Use of Adjudication
The latest report highlights a substantial uptake in the use of Adjudication in Ireland with a 159% increase year on year in the number of applications to the panel. From a low base of one application in Year 1, to 11 in Year two, Year three had 39, Year 4 had 54, year 5 had 51 and now year 6 detailed 81 applications to the panel for appointment of an adjudicator. A larger 192% increase in actual appointments took place year on year from 0 in year 1, to 9 in year 2, to 32 in year 3, 46 in year 4, a drop to 37 in year 5 and now a substantial increase to 71 in year 6. There were also four non-compliant applications. Nothing is again noted in the report as to who or what has decided that an application is non-compliant other than the report notes that they were deemed to be non-compliant with the legislation or the application requirements set out in the ‘Code of Practice Governing the Conduct of Adjudications.’
 
Adjudicators
Architects have continued their maintenance at the top of the yearly leader board as the profession with the highest number of appointments with 26% (15) of all appointments with Quantity Surveyors coming up a close second with 24% (14) , followed by Fellows of the CIArb at 16% (9), Engineers at 12% (7) and solicitors at 5% (3). This does show a spread of appointments across all professions in the year to July 2022. The most common rate charged by adjudicators is now set in a band width from €201 to €350 per hour. The highest rate charged is recorded in the €451 to €500 per hour bracket where two cases are reported with a case also appearing in the €151-200 per hour bracket.

Parties in Dispute
No surprise that Sub contractor's referring against the Main Contractor continues to lead the way in the number of disputes and this relationship was responsible for 49% of the cases on the panel. Main Contractors are also continuing to use the adjudication process as a resolution tool with 32% of cases referred by them against non-Public Body Employers and a further 5% between them and Public Body employers. There is a record of four cases (7%) been referred by Main Contractors against Sub contractors through the panel this year. Employers referring against Main Contractors was responsible for two cases in year 6 and we continue to see the use by professional consultants that started in year 5, where a further two cases were referred against their clients. There were no cases in year six of subcontractors referring against other subcontractors. There continues to be no reference to a Public Body having used adjudication against a contractor to date. In respect to the outcomes of decisions, the Referring Party were successful on 67% of reported cases with the respondent successful on 22% of cases. 11% of cases had a split decision issued. 

Location of Dispute
Dublin continues to have the largest number of disputes with 43% of cases located in the Capital. For the first time since its introduction, there are now recorded cases in Roscommon and Offaly. Munster is headed up by Cork who are responsible for 9%. Galway leads the cases west of the Shannon with 11% of cases in year 6. In Ulster, Cavan was again the only county to have a case. Only Donegal, Leitrim, Sligo and Westmeath have yet to record a case on the system in 6 years.
 
Values and Costs
In year 6, following on from a similar situation in year 4 and 5, a value between €100-500k (10 cases) is the most common value awarded following closely by €10k-€50k (7 cases) and €50k to €100k (6 cases). There highest value recorded was one case where the award was between €1 - €5 million.
54% of cases resulted in a total adjudicator cost of less than €10k with a further 29% between €10k and 20k. 25% of cases had a final adjudicator fee of more than €20k over the period with the highest reported fee of between €100-105k.
 
Conclusion
It is not surprising to find a substantial uptake in the number of applications to the panel in Year 6 as the industry deals with COVID, price inflation and the restriction on cash. In the calendar year of 2022, it is likely that the number of applications to the panel will breach 90 for the first time but it is unlikely to reach the magic 100 figure. Adjudication is clearly now seen as a real option for the resolution of disputes in Ireland and it is likely with current market conditions that the numbers continue to rise in year 7.

For a full copy of the annual report including copies of the previous year’s report please follow the link here to the Construction Contracts Adjudication Services Website. A copy of the report is also attached below for download. 
 
Keith Kelliher is an Accredited Adjudicator, who has represented Main Contractors and Sub-Contractors in payment disputes for over 20 years in the Irish construction industry. Keith has represented numerous parties in the Adjudication process to date in Ireland from referral through to a decision. Contact Keith at kkelliher@adjudicator.ie for any assistance with the requirements of the ACT. This article is a commentary piece and does not constitute nor should it be relied upon as legal or professional advice.
sixth_annual_report_of_the_implementation_of_the_construction_contracts_act_2013.pdf
File Size: 494 kb
File Type: pdf
Download File
]]><![CDATA[Adjudication in Ireland - Ministers Panel Year 5 Report]]>Mon, 01 Nov 2021 16:55:47 GMThttps://www.adjudicator.ie/blog/adjudication-in-ireland-ministers-panel-year-5-reportA little later than usual and after the end of the fifth year of adjudication in Ireland has come and gone (The Construction Contracts Act 2013 came into force for any construction contract entered into after the 25th of July 2016, therefore this date is the end of each yearly cycle) we have today, received the report in respect to the year that ended in July 2021. The Chair of the Ministers panel of Adjudicators, Mr. Bernard Gogarty, who replaced Dr. Nael G. Bunni, has today issued the yearly report in respect to the activity through the panel in the year to end July. The report outlines some detail in respect to the use of adjudication through the panel, but it does not include any information in respect to any adjudications where the Ministers Panel have not been the appointing body. It can therefore only give a snapshot in respect to where adjudication usage actual sits. So, what does it tell us...

​Use of Adjudication
The latest report, surprisingly outlines a circa 6% drop year on year in the number of applications to the panel. From a low base of one application in Year 1, to 11 in Year two, Year three had 39, Year 4 had 54 and now year 5 detailed 51 applications to the panel for appointment of an adjudicator. A larger 20% drop-in actual appointments took place year on year from 0 in year 1, to 9 in year 2, to 32 in year 3, 46 in year 4 and down to 37 in year 5. For the first time, the report outlines that there were ten non-compliant applications. Nothing is noted in the report as to who or what has decided that an application is non-compliant other than the report notes that they were deemed to be non-compliant with the legislation or the application requirements set out in the ‘Code of Practice Governing the Conduct of Adjudications.’

​Adjudicators
Architects have surged up the leaderboard in Year 5 as the profession with the highest number of appointments with 33% (16) of all appointments with Quantity Surveyors getting knocked off the top spot matching their 31% (15) of appointments from year 4, followed by Barristers at 19% (9), Engineers at 10% (5) and Fellows of the CIArb at 6% (3). There were no appointments made to solicitors from the panel in the year. The most common rate charged by adjudicators is maintained at the year 4 level between €250 and €300 (36%) with a charge between €200 and €250 per hour next in 26% of cases. There was no case recorded this year with an adjudicator charging over €450 per hour, a reduction is the highest value by €50 per hour since Year 4.

​Parties in Dispute
No surprise that Sub contractor's referring against the Main Contractor continues to lead the way in the number of disputes and this relationship was responsible for 40% of the cases on the panel. Main Contractors are also continuing to use the adjudication process as a resolution tool with 25% of cases referred by them against non-Public Body Employers and a further 13% between them and Public Body employers. There is a record of two cases (4%) been referred by Main Contractors against Sub contractors through the panel this year. Employers referring against Main Contractors was not responsible for any cases in year 5. For the first time, since the report began, professional consultants are now using adjudication against their employers with four cases now accounting for 8% of cases referred and subcontractors referring against other subcontractors was responsible for some 5 cases or 10% of cases referred. There continues to be no reference to a Public Body having used adjudication against a contractor to date. In respect to the outcomes of decisions, the Referring Party were successful on 50% of reported cases with the respondent successful on 15% of cases. 35% of cases had a split decision issued. 

​Location of Dispute
Dublin continues to have the largest number of disputes with 58% of cases located in the Capital. For the first time since its introduction, there are now recorded cases in Carlow, Clare, Kilkenny, Longford, Louth, and Meath. Munster is headed up by Cork who are responsible for 8% of cases and Tipperary with 6%. There were only two cases west of the Shannon which means the province has only had two cases in 2 years. In Ulster, Cavan was the only county to have a case. Kildare and Laois with 2 cases each round off the counties with cases. Only Donegal, Leitrim, Sligo, Roscommon, Westmeath and Offaly have yet to record a case on the system in 5 years. 

​Values and Costs
In year 5, following on from a similar situation in year 4, a value between €100-500k is the most common value awarded in 23% of cases following closely by nil and €50k to €100k each at 18%. There highest value recorded are three cases where the award was between €1 - €5 million.
​
48% of cases resulted in a total adjudicator cost of less than €10k with a further 20% between €10k and 20k. 32% of cases had a final adjudicator fee of more than €20k over the period with the highest reported fee of between €65-70k.

Conclusion
It is surprising to find a fall off in the number of applications to the panel in Year 5. Year 5 was the end of the first cycle of the panel with a revised Adjudication Panel of 35 persons appointed in the summer. The report highlights some interesting developments, most notably the rise in professionals seeking to utilize adjudication to resolve disputes with their clients. In a year that also delivered the first court cases on the Construction Contracts Act, it will be interesting to see what year 6 brings and to see if we have peaked at our application and appointment level or if the COVID and other factors impacted the growth in the use of the process during the period.

For a full copy of the annual report including copies of the previous year’s report please follow the link here to the Construction Contracts Adjudication Services Website.
 
Keith Kelliher is an Accredited Adjudicator, who has represented Main Contractors and Sub-Contractors in payment disputes for over 20 years in the Irish construction industry. Keith has represented numerous parties in the Adjudication process to date in Ireland from referral through to a decision. Contact Keith at kkelliher@adjudicator.ie for any assistance with the requirements of the ACT. This article is a commentary piece and does not constitute nor should it be relied upon as legal or professional advice.

]]><![CDATA[Construction Contracts Act 2013 Case Law Listing]]>Thu, 25 Feb 2021 08:47:54 GMThttps://www.adjudicator.ie/blog/construction-contracts-act-2013-case-law-listingClick for copies of the Judgements in all the cases that mention the Construction Contracts Act 2013
]]><![CDATA[The end of the first Construction Adjudication cycle in Ireland....]]>Tue, 19 Jan 2021 11:58:29 GMThttps://www.adjudicator.ie/blog/the-end-of-the-first-construction-adjudication-cycle-in-irelandOn the 15th January 2016, confirmation was published[1] by the Minister of State for Business and Employment of the first Adjudicators Panel formed under Section 8 of the Construction Contracts Act. The notice noted an appointment period for the 30 strong panel of Adjudicators from the 8th December 2015 to the 7th December 2020.

Jump on 5 years and with no move made by the department to have a new panel formed the  Tánaiste and Minister for Enterprise, Trade and Employment  confirmed, the second Adjudication Panel[2] under Section 8 of the Construction Contracts Act. The second panel was formed by reappointing the first panel until the 7th March 2021 in order to allow the department the opportunity to run an appointment process for a new panel. The department commenced this process on 9th December with publication of expressions of interest to be submitted no later than the 11th December 2020. This process will continue in the early part of 2021 with appointments clearly envisaged in advance of the 7th March 2021 when the current panel appointments cease.

So what if anything have we learned from the initial panel period?
​
In September 2020, under a freedom of information request I wrote to the Department of Trade, Enterprise and Employment, to seek information in respect to the number of appointments by the panel in the period and the number of appointees that arose from those appointments. I also requested details in respect to the number of appointments each member of the panel received in the period. I was very surprised by the response. Bizarrely for a publicly appointment panel that was formed through statute the department reverted to state:

"I am sorry to inform you that we cannot locate the records and that I must therefore refuse your request"

The response went on further to state:

"Section 15(1)(a) of the ct states that an FOI request may be refused if:

'the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.'

'all reasonable steps to ascertain its whereabouts have been taken'"

So the department in which the adjudicator appointment service is operated out of, the department to which applications for appointments of adjudicators under the Act are made to and from which the appointments by the Chair of the panel are confirmed, does not have the records of who they have made appointments to……

Unperturbed by the initial setback (a setback I had never envisaged) and eager to understand the reason for such a position, I contacted a public representative for assistance. On the 13th January 2021, in response to a written freedom of information request by Mr Ged Nash TD, the Department provided the majority of the details that had been refused under my initial request. The response received provided some interesting and concerning details.

 
  • In total from the commencement of the Act to the 30th November 2020, a total of 96 appointments were made by the Panel.
 
  • In the 5 year period of appointment’s only 18 of the 30 members of the panel received an appointment. 12 members of the panel received no appointment (40% of the panel members).
 
  • 3 members of the panel have received 10 or more appointments each and the three members of the panel account for 38% of all appointments from the panel.
 
  • The highest number of appointments made to a single member over the period is 14 number cases.
 
  • Only 1/3 of the panel (10 members) have received 5 or more cases over the period.
 
The response did not give the names of the members appointed as it was stated that as the payment disputes “are private law contractual disputes, it would not be appropriate to disclose the names of the members of the Panel to whom disputes have been assigned”. Given no information was requested in respect to any disputes it is unclear as to how the identification of who received appointments from the panel in any way conflicts with the private law contractual disputes of parties.

As we seek to build momentum around Adjudication in Ireland it is very disappointing to note that 40% of the Ministers panel of Adjudicators have never even received an appointment in the 5 year period. The very basis for having a single managed panel of Adjudicators in the legislation was to ensure that experience could be gained by the adjudicators to assist in ensuring the development of excellence and expertise in the area. It would appear that for some reason this has not happened in the first cycle of our panel. It is further disappointing to see a large number of appointment’s centered on a very small circle of adjudicators, an issue that clearly must be addressed by any new panel.

Those who operate in the area will agree that Adjudication provides a real and effective option for parties in respect to the resolution of payment disputes. In order to be effective the need for an experienced pool of Adjudicators is a vital component. Diversity, Equality and Transparency are all buzz words that we regularly hear in business and politics but never more so than in the formation and operation of the new panel of Adjudicators do we clearly need these buzz words to find their way into practice……..

I would again like to thank Mr Ged Nash TD for his assistance in attaining the statistics from the Department as outlined in this piece. 

Keith Kelliher is an Accredited Adjudicator, who has completed the Diploma in Adjudication in University College Dublin, specifically on the Construction Contracts Act 2013, and has represented Main Contractors and Sub-Contractors in payment disputes for over 22 years in the Irish construction industry. Contact Keith at kkelliher@adjudicator.ie for any assistance with any form of construction contract or payment issue. This article is a commentary piece and does not constitute nor should it be relied upon as legal or professional advice.

[1] http://www.irisoifigiuil.ie/currentissues/IR150116-2.pdf

[2] http://www.irisoifigiuil.ie/archive/2020/december/Ir081220_NEW.pdf]]><![CDATA[September 01st, 2020]]>Tue, 01 Sep 2020 13:47:04 GMThttps://www.adjudicator.ie/blog/september-01st-2020​As another July passes, the end of the fourth year of adjudication in Ireland also comes to an end (The Construction Contracts Act 2013 came into force for any construction contract entered into after the 25th July 2016, therefore this date is the end of each yearly cycle). As with previous years, the Chair of the Ministers panel of Adjudicators, Dr. Nael G. Bunni, recently issued his yearly report in respect to the activity through the panel in the year to end July. The report outlines some detail in respect to the use of adjudication through the panel but it does not include any information in respect to any adjudications where the Ministers Panel have not been the appointing body. It can therefore only give a snapshot in respect to where adjudication usage actual sits. So what does it tell us...
​Use of Adjudication
The latest report, outlines a circa 138% increase year on year in the number of applications. From a low base of 1 application in Year 1, to 11 in Year two, Year three had 39 and now Year 4 has had 54 applications to the panel for appointment of an adjudicator. A similar 144% increase in actual appointments took place year on year from 0 in year 1, to 9 in year 2, to 32 in year 3 and up to 46 in year 4.​
​Adjudicators
Quantity Surveyors continue to lead the way as the profession most appointed by the panel with 31% of appointments followed by Fellow’s of the CIArb at 25%, Engineers at 19% and Barristers at 17% (Fellows of CIArb overtaking the other professions to move into 2nd place while Engineers also overtake Barristers in the number of appointments since year 3). Architects are at 6% with solicitors at 3%. The most common rate charged by adjudicators has increased by €50 per hour on average and is now between €250 and €300 (56%) with a charge between €200 and €250 per hour next in 22% of cases. There was also a case recorded with an adjudicator charging over €500 per hour.
​Parties in Dispute
No surprise that Sub contractor's referring against the Main Contractor continues to lead the way in the number of disputes and this relationship was responsible for 72% of the cases on the panel. Main Contractors are also continuing to use the adjudication process as a resolution tool with 14% of cases referred by them against non-Public Body Employers and a further 11% between them and Public Body employers. There is no record of any cases been referred by Main Contractors against Sub contractors through the panel this year. Employers referring against Main Contractors is responsible for a further 3% of cases. There continues to be no reference to a Public Body having used adjudication against a contractor to date. In respect to the outcomes of decisions, the Referring Party were successful on 56% of reported cases with the respondent successful on 24% of cases. 20% of cases had a split decision issued. 
​Location of Dispute
Dublin continues to have the largest amount of disputes with 44% of cases located in the Capital. For the first time since its introduction, there are now recorded cases in Wicklow (11%), Kildare (8%), Wexford (8%) and Laois (6%) in other parts of Leinster. Munster is represented by Cork responsible for 8% of cases and Tipperary with 3%. There were no cases recorded west of the Shannon with Connaught not having any cases included in the report. Ulster makes its first appearance in the report with Monaghan joining the list of counties with 6% of the cases in year 4. Continuing their interesting inclusion on the list is London which is again noted as having cases, with 2 noted as the location of a dispute under the Act. 
Values and Costs
Interestingly, in year 4, two values tied for the most common monetary award. Theses includes the award of nil in 32% of cases and a value between €100-500k which also accounts for 32% of cases through the panel. There highest value recorded is a case where the award was between €500k and €1million.
55% of cases resulted in a total adjudicator cost of less than €10k with a further 25% between €10k and 20k. 20% of cases had a final adjudicator fee of in excess of €20k over the period with the highest reported fee of between €35-40k.
​Conclusion
There has been lots of discussion around why Adjudication has been a slow burner in Ireland. In the main it appears that year on year, the use of adjudication is growing although at a far greater rate that had been expected. It is however noted that many in the industry are still completely unaware of the existence of the Act, the payment provisions and adjudication and ongoing publication of the existence of this piece of legislation will be required. It is also to be acknowledged that the existence of the payment provisions and the opportunity to suspend for nonpayment under the ACT will also have assisted the resolution of disputes prior to the need for a step into the adjudication process. As we have now broken through the 50 applications barrier, the hope will be that the number of appointments might continue to grow and breach this figure in year 5.
The Report also includes a note in respect to the existence of a Judicial Review proceedings that have been taken against the Act in a well-publicized dispute. Up to the end of year 4, it appears that the legislation has still not found its way into a court room.
As we approach September 2020, the 5-year term of the Ministers Panel is coming to an end and we anticipate an announcement in respect to the process for the appointment of a new panel.
For a full copy of the annual report including copies of the previous year’s report please follow the link here to the Construction Contracts Adjudication Services Website.
Keith Kelliher is an Accredited Adjudicator, who has represented Main Contractors and Sub-Contractors in payment disputes for over 20 years in the Irish construction industry. Keith has represented numerous parties in the Adjudication process (both Referring and Responding Parties) to date in Ireland from referral through to a decision. Contact Keith at kkelliher@adjudicator.ie for any assistance with the requirements of the ACT. This article is a commentary piece and does not constitute nor should it be relied upon as legal or professional advice.
]]><![CDATA[The importance of issuing Payment claims on a Cumulative basis…..]]>Tue, 26 May 2020 16:41:53 GMThttps://www.adjudicator.ie/blog/the-importance-of-issuing-payment-claims-on-a-cumulative-basisAn issue arose today that I have not come across since the early days of the Construction Contracts Act 2013 and I feel it works as a timely reminder of the sometimes unnecessary black and white view that our system undertakes.

A Notice of Intention for an outstanding sum due and owing to a client was issued to the Responding Party. The sum due and owing was based on a payment process in a written term of agreement whereby a sub-contractor would issue a payment application to a main contractor. The main contractor would revert with a payment certificate for an agreed amount, to which the sub-contractor would issue an invoice and payment would subsequently be made.

The sub-contractor issued four such payment applications, received four such payment certificates and issued four such invoices but only one of the four payments was subsequently made. No dispute existed in respect to the payments and a notice of intention was issued to the main contractor for non-payment of the outstanding sum of the three payment certificates.

The parties failed to agree on an adjudicator and an application was made to the Ministers Panel of Adjudicators under Section 6 of the Act.

The Construction Contracts Adjudication Service on reviewing the application, rejected same on the basis that it contained in affect, 3 separate individual disputes for payment arising under the same construction contract and it therefore required 3 individual notices of intention to be issued to comply with section 2 of the Code of Practice Governing the Conduct of Adjudications. The service, following a notification by telephone to explain the issue, therefore rejected the application and closed the case.

The options available are:

(1) to collate the claims into a single payment claim notice for payment on a cumulative basis, with a deduction shown only for the payment received and submit same in accordance with the relevant Payment Claim Date under the contract and awaiting the run through of the cycle before, in the assumed absence of payment, issuing a Notice of Intention for the full amount again, or

(2) issuing three separate notices of Intention for the three separate disputed amounts and again in the assumed absence of payment, following on with three applications for appointment of adjudicators for the three references. It is assumed, but not guaranteed, that the same Adjudicator would be appointed on the three cases, but they would still require three sets of referral documents, should the claims proceed.

The issue brought home the reality and necessity of claiming for all works carried out under a construction contract on a cumulative basis with deduction from the value claimed, only made for payments having been received into your account.

In that way, unnecessary time, paperwork and cost will not be lost in attempting to recoup your entitlement.

Keith Kelliher is an Accredited Adjudicator, who has completed the Diploma in Adjudication in University College Dublin, specifically on the Construction Contracts Act 2013, and has represented Main Contractors and Sub-Contractors in payment disputes for over 20 years in the Irish construction industry. Contact Keith at kkelliher@adjudicator.ie for any assistance with the requirements of the ACT. This article is a commentary piece and does not constitute nor should it be relied upon as legal or professional advice.
]]>