Category Archives: Dispute management

Keeping Busy

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Those who visit these pages from time to time might have noticed that it has been a little while since my last post, and perhaps guess that this is a symptom of idleness.

In fact, the contrary is true. Since getting back from Europe and the United States, I have had far too little time for sidelines. In moving to the beautiful Myponga Beach, I had in mind that these days I go to the airport rather more often than I go to the law courts in Adelaide, and so it is been continuing to prove: I have been in Sydney on dispute avoidance board business and in Darwin on adjudication determination challenge business.

I did rather think that I might have been able to set a bit of precedent in the Northern Territory courts, in terms of bringing the Northern Territory into line with the rest of the country, and in particular New South Wales, on the topic of what introductory relief should be granted after an adjudication challenge has been launched, but before it can be heard by the court. In the Northern Territory, the typical Continue reading →

Prisoner’s dilemma, PPPs and DBs

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prisonerI have just got back to base after an interesting and worthwhile Dispute Review Board Foundation International conference in Santiago, Chile. A topic of particular interest was the use of Dispute Boards in PPP projects.

Most readers of this post will know what a PPP project is, but for those who don’t, I have included a rough guide below[1]. Likewise for those who might like a quick guide to dispute boards[2]. But what has this got to do with game theory, and in particular, prisoner’s dilemma?

I was first introduced to prisoner’s dilemma by the revised version of Richard Dawkins The Selfish Gene. It is all to do with iteration, and why, when only the fittest survive, so many organisms, including homo sapiens, will often do selfless things for the benefit of their own kind.

Roughly, it goes like this. A couple of likely lads are engaged in a Continue reading →

Plenty of Room for Improvement in Security of Payment in New South Wales

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socla logoSoCLA has submitted its response to the NSW discussion paper on last year’s admendments.

Those amendments have not gone done well in the courts:

  • McDougall J in Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602 said that the  amendment to s 13(2)(c) – removing the requirement for payment claims to identify themselves as such – was “unwise”.
  • In BRB Modular Pty Ltd v AWX Constructions Pty Ltd & Ors [2015] QSC 218 the Supreme Court of Queensland had to consider a contractual provision to the same effect as the new NSW statutory requirement for supporting statements. It found that, on balance, such a requirement ran so counter to the objects of the legislation (those objects being the same in Queensland and NSW) as to fall foul of the anti-avoidance provisions.
  • These ill-considered experiments also fail to take into account the observation of Justice Peter Vickery that[2]:

We now have the luxury of more than a decade of experience derived from the “hard knocks” of litigation and the practice of adjudication. This is an excellent foundation to build upon. Most of the problems, both practical and legal, one way or another have been exposed. It is surely now time to capture the best from all jurisdictions and consolidate them into a coherent national framework.

SoCLA’s response (the drafting of which I led)  likewise urges that Continue reading →

Talking, Talking

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I have a couple of talks this coming week, in Adelaide on Wednesday and then in Brisbane on Thursday.

The Wednesday talk is on indemnities, with the snappy title of Drafting Indemnities: Getting the Details Right. The session is part of a day run by Legalwise seminars – I suspect most people will be there because of the need to earn CPD points.

More fun will be the session in Keating 2015Brisbane on Thurday, where I will be joining my colleagues from my London chambers – Keating Chambers – Marcus Taverner, Adam Constable and Jennie Wild at a SoCLA event, debating the impact of Cavendish v Makdessi and other recent cases. It will take the form of a sort of debate, Jennie setting the scene, then Adam suggesting that not much has changed, and then me suggesting that the revival and expansion of the doctrine of relief from forfeiture might well be really quite a big change. I have Continue reading →

Irish Ayes

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harpSome of you may not be familiar with the Iris Oifigiúil. And why should you be?

It is the Irish State Gazette, and has just published a list of the newly appointed Construction Contracts Adjudication Panel, good for the next 5 years. It suggests that Ireland might, without undue haste[1], be moving towards commencement of its Construction Contracts Act 2013. Interestingly, about 1/3 of the panel is based outside the Republic of Ireland – mostly England but a couple from Northern Ireland and one from Scotland[2].

Rather smart, I would say. It is tempting for small jurisdictions to be parochial, but experience from all sorts of disciples – music, politics, cuisine, medicine, sex, horticulture, literature, science and pretty much everything else one can think of – benefits from Continue reading →

Pay now, Argue Later

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buy now pay laterI coined the expression “Pay now, argue later” to describe the adjudication process in early 1996 during discussions with Lord Howie of Troon in the tea room at the House of Lords. Lord Howie was a Scottish engineer, picking up the recommendation in Sir Michael Latham’s Report to introduce an adjudication scheme into construction contracts, and very sensibly sought the input of TeCSA as to how this might best be done. I was advising him to stay clear of his initial idea of making the adjudicator’s decision final and binding, on the basis that if it was final and binding, it would be impossible to prevent the courts from placing all sorts of obstacles in the way of enforcement.  It was a play on the old hire purchase slogan: “Buy now, pay later”.  I said that if an adjudication loser was obliged to pay up, without prejudice to its right to then fight it out in the courts or arbitration to try to get it back, that would achieve the objective we were looking for, but minimising the risk of court interference. It would be rare, I predicted, that this right to “argue later” would be used very much in practice.  Happily, Continue reading →

The Pit or the Pendulum

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PitandthePendulumThere are no prizes to be won for identifying that trial in a court of law is an appallingly inefficient way of deciding complex construction disputes. Although in theory more flexible, a conventional hearing in an arbitration is hardly any better, and some would say even worse.

In many cases, of course, it is possible to resolve disputes by some sort of intermediate process, either on a non-binding basis like mediation or review board, or on a “pay now, argue later” basis, such as adjudication. But sometimes, the dynamic between the parties is such that a binding and final determination is required. Is there an alternative to the full Monty?

Well there is, actually. It is pendulum arbitration. Or as the Americans sometimes call it, baseball arbitration. Or sometimes flip-flop arbitration. Or even, less obviously, a “last best offer” arbitration. Personally, I think the term “pendulum arbitration” is the most appropriate. It is not new[1]. But it is much faster and cheaper than conventional arbitration, but is just as binding.

Here is how it works. There is Continue reading →

Preparing and Answering Payment Claims

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LSSA2015I will be giving a talk in Adelaide for the Law Society of South Australia on Wednesday – 4 November 2015 – on the topic of Preparing and Answering Payment Claims under the Building and Construction Industry Security of Payment Act 2009 (SA).

This is not intended to be cutting-edge stuff, but rather a general introduction for general practitioners who may not be familiar with this tricky legislation. It has recently become all the more difficult for newcomers to Continue reading →

Back home

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debateJust back from the Society of Construction Law’s 2015 Conference in Melbourne. Brilliant.

There were some excellent papers. Everyone will have learned some really useful stuff; I certainly did.  But we also had some good fun.

Yesterday evening, I participated in the dinner debate at the Fox Car Museum. Who is more useful, lawyers or experts? Never have I been involved in such a rigged Continue reading →

The Mediation Albatros

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albatrosI was mediating last week, and am pleased to say that I was successful in resolving the dispute that had been referred to me.

I say “pleased” with some hesitation because I have a rather bizarre record which hangs a little like an albatross around my neck: I have never failed, as a mediator, to resolve the dispute before me. It is a somewhat bizarre record, as improbable as Continue reading →