As another July passess, the end of the third 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...

Adjudicators
Quantity Surveyors continue to lead the way as the profession most appointed by the panel with 38% of appointments followed closely by Barristers at 21% and Engineers at 18%. Architects, marking the year in which they received their first appointment from the panel are at 15% with solicitors at 6% and a Fellow of the CIArb at 3%. The most common rate charged by adjudicators was between €200 and €250 (46%) with a charge between €300 and €350 per hour next in 35% of cases. 

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 is now responsible for 66% of the cases on the panel. Main Contractor's are also using the adjudication process as a resolution tool with 19% of cases referred by them against non Public Body Employers, a further 6% between them and Public Body employers and 3% between them and Sub Contractors. Employers referring against Main Contractors is responsible for a further 6% of cases. There is 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 58% of reported cases with the respondent successful on 27% of cases. 15% of cases had a split decision issued. 

Location of Dispute
Dublin continues to have the largest amount of disputes with 62% of cases located in the Capital. Interestingly no other county in Leinster has ever registered a dispute to the Adjudication service. Munster is well represented however with Cork responsible for 9% of cases, Tipperary 6% and Kerry and Waterford with 3% each. May and Galway represent 6% and 3% respectively with 3% of cases noted without a location. Most interesting from the list is the fact that London is noted as the location of a dispute under the Act. 

Values and Costs
Disputes for values between €100-500k account for over 40% of cases through the panel followed closely by disputes below €100k at 31%. 47% of cases resulted in a total adjudicator cost of less than €10k with a further 22% between €10k and 20k. 25% of cases had a final adjudicator fee of in excess of €20k over the period with the highest reported fee of between €40-45k.

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 non payment under the ACT will also have assisted the resolution of disputes prior to the need for a step into the adjudication process. It will be interesting to see what changes another year might bring in respect to adjudication.

For a full copy of the annual report including copies of the previous years report please follow the link here to the Construction Contracts Adjudication Services Website.

Very much enjoyed my interview today on the topic of Mediation with Gerry Kelly on LMFM radio alongside my colleague Bill Holohan. Many thanks to Gerry for directing us through a great overview of the process.

Shortly after the official start of the collapse of Carillion Plc on 15th January 2018, when the main company and five group companies were placed into liquidation by the company directors, the phone started ringing and questions were being asked by concerned subcontractors about the impact of this move on projects in Ireland. A review of one subcontractors file and the usual gaps that exist have raised some interesting questions about the impact of the now enacted and commenced Construction Contracts Act on any outstanding payments to subcontractors in this type of scenario.

Background 

On the 22nd July 2016, the InspiredSpaces Consortium was awarded a Contract by the National Development Finance Agency for the construction of a 5 school PPP bundle. InspiredSpaces is a joint venture (50/50) between Carillion and an investment company called Dutch Infrastructure Fund. InspiredSpaces was originally set up in 2004, as a Carillion joint venture consortium vehicle to carry out collaboration projects across a number of industry sectors. InspiredSpaces is described on its website as a Carillion company but is itself a limited company registered in England and Wales.
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Sammon Contracting Limited, a Kildare based contractor, were subsequently appointed by the consortium to facilitate the construction of the schools bundle. What is not clear yet forms an important aspect of consideration from the Acts perspective, is the contractual relationship between InspiredSpaces and Sammon Contracting and if there is any intermediary between the two entities. It has been noted in one article available online that Carillion Construction Limited were contracted by the InspiredSpaces consortium with Sammon Contracting subcontracting from Carillion Construction Limited. This relationship quandary in itself would appear to have an important and interesting ramification under the Construction Contracts Act particularly when it comes to any paid when paid provisions.
    
Paid When Paid

I have previously written about the ineffective nature of paid when paid clauses in Irish construction contracts arising out of a provision in the Construction Contracts Act under Section 3(5). There are however some exclusions as outlined under Section 3(6). Were a party to a construction contract relies upon the payment of another party who is not a party to the contract and that party has a receiver appointed then the contracting party are entitled to rely upon a paid when paid clause down the supply chain. There is one main requirement in that the reliance upon a paid when paid clause in itself requires that there is a paid when paid clause in the contract between the parties in the first instance. To use the present scenario as an example, for Sammon Contracting to rely upon a paid when paid clause with their subcontractors, InspiredSpaces or Carillion Construction Limited would have to have a receiver appointed and Sammon Contracting would need to have a paid when paid provision within their subcontracts with their subcontractors.

Where further questions arise is in respect to the current legal standing of InspiredSpaces and Carillion Construction Limited. Carillion Construction Limited are listed as one of the, now sixteen, Carillion group companies that were placed into compulsory liquidation with a further company currently placed in voluntary liquidation. In respect to this company, the reliance upon a paid with paid clause in any subcontract would therefore appear to have a basis for effect. InspiredSpaces however is not a company listed as having had a receiver appointed and therefore any paid when paid clause would still appear to be ineffective under the Construction Contracts Act.

Given the origins of the Construction Contracts Act in Ireland, the Carillion collapse has provided the Irish Construction industry with a first real glimpse into the available options and protections that are offered and available under the Act in its truest sense. It has clearly highlighted the necessity and importance for all contractors to have knowledge and sight of those involved in the full contractual chain both above and below their heads as it goes to the heart of their risk and ability to recoup through the payment and adjudication provisions of the Construction Contracts Act.            
 
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 19 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.
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I have just completed my first foray into the Adjudication process in Ireland. 

I, today, managed to settle a dispute for a client, a main contractor with their client. We had commenced the adjudication process under the Construction Contracts Act and for the first time in Ireland, we applied to and had an adjudicator appointed from the Minister's panel. 

The Responding party had buried their head in the sand and refused to engage on the dispute for over 10 months. Adjudication provided the necessary tool to bring the other side to the table and to find a resolution. The duration of time from my application to the minister's panel for an adjudicator appointment to the actual receipt of disputed funds into my client's bank account was 15 days in total. A very welcome change from the past in this regard.

The system is far from perfect but it certainly worked in this instance as the alternative litigation route (no arbitration agreement) would have taken many years and involved substantial legal costs. With adjudication I was in a position to manage the entire process directly for my Client and produce all the necessary notices, reports and submissions that were required. The speed of the process provided a real benefit to the parties in terms of dealing with issues and simply finding a way of moving on. I look forward to assisting more clients through this process (and of course where possible in avoiding the necessity to go down this route)  

Please do not hesitate to contact for further information or for assistance with getting disputed payments on construction contracts dealt with. 

My next seminar on the Payment Process under the Act is on the 8th December in the Red Cow hotel.

Full details on the half day seminar available by clicking the below.....

The Department of Jobs, Enterprise and Innovation have on the 5th July 2016, issued the final version of the Code of conduct for Adjudications in Ireland under the Construction Contracts Act 2013.

The final published version of the Code of Practice does in its content include a number of new additions from previous drafts. In respect to the notice of Intention to refer, the code now places a direct requirement on the party that they must attach a copy of a written construct contract should same exit. The inclusion of the “must” in the requirement would imply non-compliance and therefore a defunct Notice should this not be complied with.

The new code also includes a new section (6) which is aimed at outlining the responsibilities of the prospective Adjudicator to the parties to a payment dispute.  In particular there is the inclusion of the requirement under section 6(ii), that an Adjudicator should only accept an appointment if they believe they are competent to determine the issues in dispute. Does this add a new dimension to the question over the definition of competency of say an Architect taking on a payment dispute centred around measurement or a Surveyor taking on a dispute centred on quality?

The code has for the first time includes, under section 8, a note in respect to the possibility of inclusion within the construction contract of a named person to perform the role of Adjudicator should the need arise under the Contract. This addition would appear to go towards assisting the parties in the maintaining control and agreement over the appointment of their own Adjudicator within the five day window allowed by the Act. The code also allows under section 9 and 10, for a further breakdown in a process of agreement of the Adjudicator within the five day window.

In addition to the general control of the Adjudication process, the code has also included under section 12, and further at section 42, that an Adjudicator, no matter how appointed, must notify the Construction Contracts Adjudication Service and supply them with some information both at the outset of appointment and on completion for the purpose of compiling statistical information relating to the Act.

The revised code has, correctly, under section 24, extended the list of information that should be provided under cover of the Notice of Referral from the previous draft. The need to include the contentions on which the Referring Party intends to rely upon will be a necessary addition in order to allow for a fair and reasonable response from the Responding party on the issues raised.

The full version of the published Code of Practice for Adjudications in Ireland is available on the Departments website here. https://www.djei.ie/en/Publications/Code-of-Practice-on-the-Conduct-of-Adjudications.html

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 15 years in the Irish construction industry. Contact Keith at kkelliher@adjudicator.ie for any assistance with the requirements of the ACT.
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​The Code of Practice on the Conduct of Adjudications has been published in accordance with section 9 of the Construction Contracts Act, 2013 by the Minister of State for Employment and Small Business, Mr Pat Breen TD.The Code of Practice is binding on all adjudicators operating under the Act regardless of whether the Adjudicator is appointed to a payment dispute under section 6(3) or 6(4) of the Act.
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