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International Construction Law Review

ADJUDICATION

HUMPHREY LLOYD1

INTRODUCTION

This paper outlines the system of adjudication as it is now employed in Great Britain2 as provided by Part II of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA” or “the Act”). The system applies to contracts made after 1 May 1998. Since this conference is concerned with construction activities in Hong Kong and elsewhere in the world I intend only to describe aspects of the present position in Great Britain so as to indicate topics which need to be considered before any decision is reached about whether or not to adopt the UK model or a system comparable to it. The paper is not therefore a commentary on the Act or on its effect. I shall refer to some decisions of the courts in Britain but I must make it clear that in the paper I do not express any view about the law, unless there is clear appellate and other established authority. The law relating to adjudication is evolving primarily as a result of applications for summary judgment. On such applications the outcome may only be that the defendant has realistic prospects of success in its proposed defence, not that the defence is right on the facts or in law. Conversely, of course, if the application succeeds the claimant’s claim is upheld as right. In many respects therefore the law and practice cannot be regarded as settled. Cases in the courts do not provide a foundation for a conclusion as to whether or not adjudication is working satisfactorily. I refer to them only to illustrate points. For the purposes of outlining areas for discussion I have at times to rely on what I have been told about how adjudication is evolving. In this connection I must also emphasise that the utility of adjudication is a policy issue for the construction industry. It is not the place of judges to comment on such questions. Before the legislation was presented to Parliament the judges of the group of which I am part were asked for their views about adjudication but naturally, no collective view was expressed nor is it likely that one will ever be expressed. Judges and arbitrators have to accept and apply statutes which affect people’s business; it is not their function to tell them otherwise.

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