We're looking forward to being able to socialize with our existing and future clients at the Goodwood Kennels Club now that Covid-19 restrictions have ...
We're looking forward to being able to socialize with our existing and future clients at the Goodwood Kennels Club now that Covid-19 restrictions have ...
It has been a busy start to the week including reading through two sets of proposed Subcontract Conditions. Just when you think you have seen it all, along comes along two Main Contractors who have attempted to raise the bar in respect of ridiculous conditions are concerned.
The first subcontract included the following:
The Subcontractor will complete the works in accordance with the Subcontract Works Order, PPSMM, and the agreed programme of works, or if no programme of works is agreed in accordance with the programme under XXX's main contract. For the avoidance of doubt any disagreement, dispute or difference shall not entitle the Subcontractor to suspend performance of the Subcontract Works.
The project is a fit-out of a large building with a duration of just over 10 months for which (potentially) the Subcontractor will have to complete without getting paid and having the right to suspend his works!!!!
The second subcontract included the following (and even more ingenious):
Where an adjudicator’s decision requires either party to pay a sum of money to the other, the adjudicator’s decision shall be satisfied by making payment into a Stakeholder account. The money in the Stakeholder account may only be withdrawn by the party
entitled to receive it on the occurrence of the earlier of any of the following:-
(i) more than fifty-six (56) days having elapsed following the delivery of the adjudicator’s decision where neither party to the Sub-Contract has served notice on the other(s) of their intention to refer the dispute to litigation;
(ii) receipt of a true copy of the arbitrator’s determination/court judgment and/or award (as applicable) following the final determination by subsequent arbitration/legal proceedings following a referral of the matters in dispute under this procedure;
(iii) receipt of written notification confirming that the dispute has or will be withdrawn from arbitration or litigation (as the Sub-Contract so provides)
(iv) agreement in writing between the parties that the money in the Stakeholder account (or any part of it) may be withdrawn and paid in accordance with the provisions of that agreement in writing.
It would appear that a number of Main Contractors are using every conceivable means possible of delaying making payment to Subcontractors. 2022 looks to be another busy year for Fyfe Construction Management Limited.
The first subcontract included the following:
The Subcontractor will complete the works in accordance with the Subcontract Works Order, PPSMM, and the agreed programme of works, or if no programme of works is agreed in accordance with the programme under XXX's main contract. For the avoidance of doubt any disagreement, dispute or difference shall not entitle the Subcontractor to suspend performance of the Subcontract Works.
The project is a fit-out of a large building with a duration of just over 10 months for which (potentially) the Subcontractor will have to complete without getting paid and having the right to suspend his works!!!!
The second subcontract included the following (and even more ingenious):
Where an adjudicator’s decision requires either party to pay a sum of money to the other, the adjudicator’s decision shall be satisfied by making payment into a Stakeholder account. The money in the Stakeholder account may only be withdrawn by the party
entitled to receive it on the occurrence of the earlier of any of the following:-
(i) more than fifty-six (56) days having elapsed following the delivery of the adjudicator’s decision where neither party to the Sub-Contract has served notice on the other(s) of their intention to refer the dispute to litigation;
(ii) receipt of a true copy of the arbitrator’s determination/court judgment and/or award (as applicable) following the final determination by subsequent arbitration/legal proceedings following a referral of the matters in dispute under this procedure;
(iii) receipt of written notification confirming that the dispute has or will be withdrawn from arbitration or litigation (as the Sub-Contract so provides)
(iv) agreement in writing between the parties that the money in the Stakeholder account (or any part of it) may be withdrawn and paid in accordance with the provisions of that agreement in writing.
It would appear that a number of Main Contractors are using every conceivable means possible of delaying making payment to Subcontractors. 2022 looks to be another busy year for Fyfe Construction Management Limited.
Some of the clauses contained in hybrid Subcontracts never cease to amaze me. Just over two years ago, my client had his Subcontract terminated 'at will' which was permissible under the agreement. The sting in the tail (pursuant to another clause in the Subcontract) was that my client was not entitled to receive any further payment for a period of two years following termination (if any was due). The two year period having then expired, my client was then told that he owed the Main Contractor a sum in the region of £120,000. This sum comprised a number of charges for alleged defective works which had never previously been brought to the attention of my client.
Cue adjudication. Well I'm glad to report that the adjudicator has just decided in favour of my client who now starts the weekend circa £320,000 richer albeit he has had to wait over two years to get the money. Moral of the story - SUBCONTRACTORS, CHECK THE WORDING OF THE CONTRACT BEFORE YOU SIGN!
Cue adjudication. Well I'm glad to report that the adjudicator has just decided in favour of my client who now starts the weekend circa £320,000 richer albeit he has had to wait over two years to get the money. Moral of the story - SUBCONTRACTORS, CHECK THE WORDING OF THE CONTRACT BEFORE YOU SIGN!
While I find myself currently 'in between' adjudications, I thought I would compare my workload as party representative over the past four years. Having analysed my historic adjudication caseload (and discounting the number of occasions where I acted as adjudicator in disputes) I have been able to plot the yearly numbers which is quite startling (see graph below).
Although I am aware of another 3No. adjudications in which I will be potentially representing clients between now and the end of the year (which have not been included in my numbers), it would appear that the steep upward rise in cases seems to be starting to slow down despite the numbers remaining way ahead of my planned 10No. per year. I wonder if this trend could be in line with the effects of Covid-19?
Although I am aware of another 3No. adjudications in which I will be potentially representing clients between now and the end of the year (which have not been included in my numbers), it would appear that the steep upward rise in cases seems to be starting to slow down despite the numbers remaining way ahead of my planned 10No. per year. I wonder if this trend could be in line with the effects of Covid-19?
When Alternative Dispute Resolution should have been employed .....!
They’d fallen out over £3,500!
They’d fallen out over £3,500!
Another three great results for a client of mine who hadn't received payment of their interim applications. I was able to recover 100% of their payments in less than two weeks. It's amazing what happens when you commence adjudication proceedings against a party who has failed to comply with the requirements of the HGCRA and/or the Scheme.