The articles and blog entries herein are not offered as, and do not constitute, legal advice or legal opinions. Any reliance upon information presented in this blog is at your own risk, and CDR accepts no liability for any claim brought as a result of you or a third party relying on this information. See our legal disclaimer.
Some of you may remember our ‘meet the team’ series. We now have a new face at CDR (relatively speaking – having joined in August 2018!), and we thought it was about time we introduced you to the newest member of our team: Billy Wong. To find out more about Billy and his role in CDR, please click here
On Friday our Managing Director, Janey Milligan, was honoured to take part in the BAC/BIAC 2018 Edinburgh Summit on Commercial Dispute Resolution in China.
Janey had the pleasure of being a panellist discussing the latest developments in construction law in China, which inspired a number of interesting questions and discussion among the delegates.
Also in attendance was Contract Consultant, Amy Jackson, who enjoyed the range of topics discussed throughout the day, and hearing about the differences in approach across jurisdictions.
The CDR team look forward to more interesting events in the future, and to welcoming BAC/BIAC back to Scotland.
The recent case of Baldwin v JR Pickstock Ltd has provided some useful insight for both party representatives and adjudicators into the approach of the courts to matters of timetabling and tactics in adjudication. In this update, we provide our view on the case and the implications for adjudicators and party representatives. To read our thoughts, click here: Caught in a trap – Baldwin v JR Pickstock
At the end of 2017 one particular court judgment encouraged lengthy discussion and debate across adjudicators and those who work in the construction disputes sector. The judgment was that of Lord Doherty in DC Community Partnerships Limited v Renfrewshire Council, in which the court held that the adjudicator had failed to exhaust his jurisdiction.
In our most recent update, we provide an adjudicator’s perspective on the case, based on our own experience in the field and welcome comment and discussion from others as to how, if at all, their approach to adjudication has changed following the judgment.
In this week’s update we consider the recent case of Dacy Building Services Limited v IDM Properties LLP, which has highlighted the complexities of oral contracts and the circumstances in which they come into existence.
Our update discusses some of the key issues when entering into oral contracts, and reiterates our advice that it is always best to record or confirm key contractual matters in writing.
Read the update in full here: A Chance Encounter – Davy v IDM
As always, we would love to hear from you, particularly if you have experience with oral contracts. Join in the discussion on our LinkedIn page or drop us an email at firstname.lastname@example.org
Today we are celebrating International Women’s Day 2018, and considering the theme of #PressforProgress – particularly how this can apply to the UK construction industry.
At CDR, a firm of predominately women, we like to think we ‘buck the trend’ and challenge the view of the construction industry as a ‘Man’s World’. This also means, however, that we all understand on a personal level the importance of inclusion and of making collective efforts to achieve gender parity.
However, with the recent announcement that just 19% of members of construction company boards are women, and reports of gender pay gaps of up to almost 36%, it is clear that there is room for improvement.
With this in mind, we would love to hear your thoughts on how the construction industry can #PressforProgress and achieve gender parity.
How do we attract young women into careers in the construction industry? What needs to be done to shake off the stereotypical image of construction sites? And how do we get women in the boardroom to make the tough decisions?
CDR are looking for a new member to join our team as a trainee contract consultant. For further details of the role and how to apply please click on the following link: Trainee Contract Consultant Role Feb 18
Members of the Adjudication Society may have already spotted CDR’s article in the Winter 2017 newsletter, however for those who have not, we have uploaded a copy of the newsletter here.
Our article provides a ‘precis’ of our most recent research into the costs of adjudication, which was presented at the Society’s Annual Conference in November.
The newsletter also contains a number of interesting articles from professionals across the industry, and makes for worthwhile reading for anyone with an interest in dispute resolution.
Members of the Confederation of Construction Specialists may have already spotted CDR’s article on conditions precedent – the contractual pitfall which can cost contractors their entitlement to large claims.
The article is included in the November 2017 newsletter and provides our ‘top tips’ on what to look out for in your contracts and how to protect your position.
In case you missed it, you can read the article in full here.
Further to our recent paper concerning adjudicators’ fees, and following publication and discussion of our latest research into trends in adjudication at the Adjudication Society’s conference last week, we are happy to announce that our most up-to-date ‘fact sheet’ is now available.
This fact sheet highlights key statistics and trends based on returns from Adjudicator Nominating bodies (ANBs), and indicates some interesting developments, particularly with regard to the primary discipline of adjudicators.
To view our fact sheet in full, please click here: Adjudication Statistics – Overview and Key Facts.
We have recently carried out research into adjudicators’ fees and prepared a short paper providing key statistics with regard to fees in adjudication. This paper was presented at our sponsor, the Adjudication Society’s, annual conference in London on 9 November 2017 and has already encouraged discussion with dispute resolution professionals.
Our research has indicated, as many in the industry would have believed, that adjudicators’ hourly fees are on the rise. Our paper also provides insight into the total fee charged by adjudicators, and therefore the time spent by adjudicators on reaching their decisions – a key area of interest for those who have followed our research over the years. We also present our findings on the split of adjudicators’ fees between the parties, giving an indicator of success at adjudication.
We are sure this will make for interesting reading for adjudicators, party representatives, and construction companies alike, providing an insight into the costs of adjudication, which remains a very popular means of resolving construction disputes. To read our paper in full, please click here: Adjudication Fees
As always, we would love to hear your thoughts on our research – is there anything in our findings which surprises you? Is there anything you find particularly interesting, or perhaps you can add further insight with some anecdotal evidence? Let us know in the comments!
We are especially interested in hearing from party representatives with regard to their fees in adjudication to provide a fuller picture of adjudication costs. If you currently act as party representative and would be interested in taking part in our research, please contact Janey Milligan at email@example.com
This week on the blog we are discussing the recent case of Jacobs v Skanska, which raises a number of pertinent questions for the adjudication industry.
The case considered the extent of the statutory right to refer disputes to adjudication ‘at any time’; parties’ right to unilaterally withdraw their claim at adjudication; and when parties’ behaviour is oppressive rather than tactical.
We would love to hear your thoughts about this case! Where do you believe the line should be drawn between ‘tactical’ and ‘oppressive’? At what stage is it reasonable for a referring party to withdraw from adjudication? And how will all this impact on the adjudication industry?
To read the blog in full, please visit: Parties’ Conduct at Adjudication – Jacobs v Skanska
Following the introduction in Scotland of the Court of Session’s Practice Note No. 1 of 2017, there is a new emphasis on mediation in commercial disputes. Together with the recent ruling of the Court of Justice of the EU that Member States are free to stipulate that parties to disputes mediate before raising a court action; mediation is once again a hot topic in the world of ADR.
In light of this, this month CDR has reviewed the role of mediation in providing access to justice across the UK, considering the question: what are the implications for parties who fail to consider mediation? To read our article in full, please click: Read More
We are looking to strengthen our team with a further contract consultant, preferably with delay analysis experience. The candidate will either be looking to begin a career in dispute resolution or have already gained experience within this field and seeking new challenges.
For further details of the role and how to apply please click on the following link: contract-consultant-advert
Recently, our Managing Director Janey Milligan spoke to Anderson Strathern about the evolution of adjudication. Janey discussed her motivations for becoming an adjudicator when the Construction Act was first introduced, as well as some of key changes since then in terms of how parties approach adjudication. Matters of jurisdiction and the broadening scope of disputes referred to adjudication were also discussed, as was representation of women on ANB lists, and best practice. To read the interview in full, please visit: https://andersonstrathern.co.uk/news-insight/reflections-on-adjudication/
In case you missed it: CDR were recently featured in The Herald’s report on the Scottish construction and engineering industry, discussing the benefits of ‘talking things over’ and resolving disputes early on.
Members of the Confederation of Construction Specialists may have already spotted CDR’s article on how to draft a successful claim document in this month’s newsletter. The article is based on a case study and sets out some top tips and practical pointers when drafting a claim document, including what support is needed to increase your chances of success. To read the article in full please visit: http://constructionspecialists.org/docs/newsletter-construction-disputeresolution1.pdf?ct=t(Confederation_of_Construction_Specialist10_7_2016)&mc_cid=cc99806e03&mc_eid=f92fd33c57
At CDR we pride ourselves on our industry leading research. Last week, Janey Milligan, Managing Director of CDR, delivered our paper ‘UK Construction Payment Legislation – Clarity or Chaos?’ at the 2016 RICS COBRA Conference in Toronto, Canada. The paper serves as a precis of recent key UK judgments on payment in the construction industry and makes some recommendations going forward to ensure payment processes in the industry are clear and fair. The full paper is attached, and we welcome any comments.
This week we’re kicking off a ‘meet the team’ series so our followers and clients can get to know a little more about the people behind CDR. First up is Janey Milligan, CDR’s founder and managing director.
Everyone has heard the saying “cash flow is King”. This week, CDR provide some top tips for getting money in the door and effectively managing your cash flow. We believe there are four key points to always bear in mind for an increased likelihood of payment: first, understand and apply the contract provisions; second, consider your application carefully and make sure it meets all the relevant criteria; third, make a good first impression with a well-presented application; and finally, think outside of the express contract terms and don’t underestimate the power of building relationships. For more detail and some practical pointers,
All too often employers, contractors and sub-contractors fail to appreciate the importance of the programme until it is too late, when the works are already in delay and they are incurring significant delay damages or prolongation costs – don’t let this happen to you! At CDR we have in-house programming and delay analysis expertise, and this week we’re passing on some of our top tips for preparing and utilising the programme.
Looking for a quick and cost effective means of resolving your dispute which you retain control of and which has an impressive track record of success? We could have the answer that ticks all the boxes!
This week CDR consider the role of the expert witness in construction disputes, the relevance of expert witnesses, and the potential value to be added by instructing an expert in your dispute.
In this next article regarding certificates issued under a building contract we consider the implications of the introduction of the Local Democracy, Economic Development and Construction Act 2009 and how this relates to Architects or other professionals issuing certificates under a building contract to enable payment to be made to the Contractor.
CDR’s Managing Director, Janey Milligan, has recently reviewed ‘A Practical Guide to Construction Adjudication’ by James Pickavance for Construction Law (Vol. 27, No. 1), concluding that the text provides an invaluable resource for both Adjudicators and parties. To read the full review,
As one of the longest serving directors of the Scottish Arbitration Centre, Janey Milligan has recently considered the impact of the Centre’s efforts in promoting Arbitration as an effective means of alternative dispute resolution.
Janey’s thoughts were published in the Centre’s most recent newsletter. To subscribe to the Centre’s newsletter, please visit:http://www.scottisharbitrationcentre.org/ and enter your email address at the bottom of the page.
In the meantime, to read Janey’s article in full, please click the following link:Scottish Arbitration Centre Newsletter – Janey Milligan Article
The Chartered Institute of Arbitrators recently held its 3rd annual Dispute Appointment Service (DAS) Convention in London. The focus of the convention was the role of alternative dispute resolution in providing access to justice in the face of rising court fees. Janey Milligan of CDR spoke at the convention, a member of the third panel of the day, concentrating on adjudication. Janey spoke alongside Robert Sliwinski FCIArb (SWL Chambers), Dr Robert Gaitskell QC FCIArb (Keating Chambers), and Tony Bingham FCIArb (3PB).
Based on research carried out by CDR, the panel concluded that Adjudication remained a popular means of alternative dispute resolution; however, it was recognised that intimidation is a significant matter with the potential to influence the use and effectiveness of Adjudication. Despite this, it was noted that ANBs, professional bodies and the Courts are aware of this issue and are working pro-actively to tackle its impact and effects; and so it is clear that there is a concerted effort on all parts to protect Adjudication and ensure the founding principles remain at the forefront of parties’ minds.
Janey also discussed the matter of costs in Adjudication, setting out findings from research carried out by CDR and presented in a 2011 COBRA Paper, and considering how the position has changed over the following years. It was noted that whilst hourly fees of Adjudicators are on the rise, the total fee does not appear to be on the incline. Perhaps this suggests that Adjudication is becoming more efficient? Or could it be that Adjudicators no longer charge for all hours worked? We would welcome your comments in this regard.
For further details of CDR’s research in these areas, please see the Training and Research section of our website: :
For further details of the DAS Convention, including the other topics covered on the day, please see:
In recent years, the NEC3 suite of contracts has been the topic of discussion across the construction industry, particularly with regards to its interpretation and operation. It has been said; and it is CDR’s experience; that NEC3 is not operated per the Conditions.
However, recently CDR delivered a seminar to employees of a sub-contractor who had many positive experiences of operating NEC3. These interesting insights have caused CDR to question whether we are moving toward a position where this particular suite of contracts can be operated more effectively. Could it be that the industry is learning from its mistakes? Or are these positive experiences simply an example of good fortune?
As always, we would welcome your thoughts.
Eversheds LLP’s conference took place in London on 17 November 2015 to launch one of its partners, James Pickavance’s new book ‘A Practical Guide to Construction Adjudication’. Janey Milligan of CDR presented at the conference, alongside a number of other distinguished speakers: Stephen Furst QC, Sean Brannigan QC, Steffen Jung, The Honourable Mr Justice Edwards-Stuart QC, and James Pickavance himself.
The topic of Janey’s presentation was ‘The Intimidation Game’; considering tactics of intimidation, the extent and impact of such on statutory Adjudication, and the possible need for updated guidance, training or codes of conduct to tackle the issue. This talk provided a precis of research presented earlier this year at the RICS COBRA AUBEA Conference in Sydney, Australia, as well as providing an update in light of progress made by a dedicated working group set up to consider the issue further.
In doing so, Janey also noted some of the key statistics with regards to the use of statutory Adjudication in general, confirming that the research previously carried out in conjunction with Glasgow Caledonian University’s Adjudication Reporting Centre is now being hosted and supported by the Adjudication Society, allowing consistency of research to be maintained.
Prior to the publication of the next Report on these statistics, the following link provides a snapshot of the key findings from the most recent reporting period, year 17 of statutory adjudication.
Last week, we delivered a training seminar, in conjunction with the Building Contractors Training Group (BCTG), looking at the practicalities of operating under the NEC contract. The key objectives of the course were to provide:-
- An outline of NEC3;
- An overview of the NEC3 Suite of Documents;
- An overview of the Characteristics of the six Main Options; and
- An explanation of the key NEC3 Processes and Procedures, as follows: –
- Works Information;
- Contract Data;
- Risk Register;
- Early warning (Clause 16);
- Compensation event (Clause 60);
- Valuing the Works & Activity Schedule / Bill of Quantities (Clause 50);
- Payment under NEC3; and
- The programme and revising the programme (Clause 31 and Clause 32).
Feedback from the session was very positive and interest has since been shown in delivering further presentations on NEC3 tailored to the company’s individual needs.
If this topic is of interest or if you would like to discuss any of the other courses that CDR can provide please do not hesitate to contact us on tel: 0141 773 3377 or email: firstname.lastname@example.org
The CDR team were delighted to once again support the Stewart Milne Group Charity Ball on Saturday 5 September.
After a very busy few weeks in the office, it was the perfect opportunity for the team to let down their hair, all while raising money for a great cause and joining Stewart Milne in celebrating 40 years of success.
With, £55,000.00 raised for the Beatson Institute, CDR are proud to have supported such a successful event!
Recently, Janey Milligan, Managing Director of CDR, delivered a presentation entitled ‘The Extent and Impact of Intimidation in UK Statutory Adjudication’ at the RICS COBRA AUBEA Conference in Sydney, Australia. The talk provided a précis of CDR’s research into intimidation in adjudication, and it inspired a wealth of discussion at the conference. To read the paper which formed the basis of the talk, please click the
We are almost half way through 2015 and the Courts have already been asked twice to consider the implications of ‘fitness for purpose’ obligations versus ‘reasonable skill and care’ obligations with differing outcomes. The following link directs you to the first instalment, where CDR considers the ruling in the first case in question back in February 2015, as well as discussing some of the implications for contracting parties.
We recently provided a training seminar, in conjunction with the Building Contractors Training Group (BCTG), on the topic of ‘Setting up the Contract’. In this course we provided an overview of the following topics: –
Understanding the Contract;
- Overview of Contract Terms, Requirements and Amendments;
- Sub-Contract Particulars;
- Estimating to Commercial Team Transfer;
- Criticality of the Contract Programme;
- Internal Company Procedures with regards to Reporting, Recording of Project Issues etc;
- Contractual notice requirements; and
- The contractual effect of Completion be that practical, substantial or otherwise.
The feedback from those attending was that it provided them with a much needed opportunity to go ‘back to basics’ in terms of the critical role of the contract. It also provided an insight into possible new approaches that could be taken to ensure compliance with their obligations.
If this topic is of interest or if you would like to discuss any of the other courses that CDR can provide please do not hesitate to contact us on tel: 0141 773 3377 or email: email@example.com
In the wake of ISG Construction Ltd v Seevic College  EWHC 4007 (TCC), there has been a wealth of discussion regarding payment notices and their operation in practice. In this latest update, CDR contribute to this discussion. To read our recent article please click the following
In light of recent developments in case law regarding Payment Notices, in this update CDR go back to basics, setting out and discussing payment provisions under the Scheme for Construction Contracts. To read our recent article please click the following