Damages

Construction Contracts Amendment Bill 2015 to pass today

Yesterday, 22 September, the Minister introduced Supplementary Order Paper 106 into the House reversing the earlier, and highly controversial aspects of Supplementary Order Paper 52 (particularly in relation to the appointment of adjudicators).  The Bill is now pretty much as it was reported back to the House following the Select Committee hearings, including the new provisions relating to statutory trusts for retentions.

The Bill was debated until the House rose at 10.00 last night.  It is likely that the Bill will pass into law when the debate resumes at 2.00 pm today.

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Is set-off available against a sum determined as payable by an adjudicator?

The difficult issue of set-off and the pay-now-argue-later regime of adjudication under the UK’s Housing Grants,  Construction and Regeneration Act 1996 has recently come under consideration in the Technology and Construction Court.  The discussion by Justice Akenhead is useful and relevant to the right to set-off under our own regime under the Construction Contracts Act 2002, and the importance of raising set-off and/or abatement (if there is a right under the contract) as part of the adjudication proceedings.

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Bad Pennies – the common law right to interest clarified

All too frequently, adjudicators are presented with claims which include a request for interest on the amount determined at the rate of 8.4% under the Judicature Act, or similar.  This gives rise to the vexed question of whether or not there is a common law right to claim interest, and if so, what interest rate is to be used, and how is it to be applied. It has been a long standing rule at English law that in the absence of any agreement, the court has no power to award interest as general damages. [1]  In other words, as compensation for the late payment of a debt or damages.[2] This has lead to the mantra that there is no freestanding right for adjudicator to award interest gaining considerable authority, by repetition if nothing more. However, this is not the entire picture. This paper, published in March 2009, examines the ability to claim interest, particularly as it applies to adjudications under the Construction Contracts Act 2002.

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