Cofely v Knowles – From Appointment to Disappointment
There have been two High Court cases within the last 15 months that lift the lid off what some perceive to be questionable practices (particularly in relation to the Eurocom case) that have developed over the last few years in the world of adjudication and arbitration in the UK. The first, in November 2014, was a decision of Ramsey J sitting in the Technology and Construction Court in Eurocom v Siemens PLC and the second, which is the focus of this article, was a decision of Hamblen J, in the Commercial Court in Cofely Limited v Anthony Bingham and Knowles Limited. Both of these cases illustrate the lengths to which some parties will go to steer the nomination process in order to secure the tribunal of their choice. Some view these practices as innocent forum shopping; others see them as tantamount to forum shop-lifting. What is becoming increasingly clear is that these practices have become by no means exceptional or even unusual. Hopefully the outcome of these cases will act as a real deterrent to these practices in the future.
Aspect v Higgins: The Final Reckoning
How long do you have to challenge an adjudicator’s decision? Controversially, the English Supreme Court has now ruled as follows: If you were the loser and required to pay monies, you will have the full limitation period, typically six years, to bring your claim to recover those monies starting from when you were required to make payment to the winner; whereas If you were the winner, your right to seek an improvement of the result will come to an end at the same time as the limitation period for the original claim.
Time Waits for no Man – So you think the Adjudicator got it wrong? How long do you have to challenge the decision?
How long have you got to challenge the adjudicator’s decision? The English Court of Appeal has decided: 1) the claimant who considers the adjudicator awarded too little must challenge before the original limitation period for his claim expires; and 2) the defendant who considers he paid too much has a new limitation period starting on the day he paid the adjudicator’s decision. Is it unfair that the loser may have years longer than the winner? That question will soon be answered by the Supreme Court of the United Kingdom. Their decision will be of interest to anyone involved with FIDIC DABs anywhere in the world.
