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Refers to the basic fundamental principles of fair treatment.
These principles include the duty to give someone a fair hearing; the duty to ensure that the matter is decided by someone who is impartial; and the duty to allow an appeal against a decision.
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Key issues to consider when preparing an adjudication Response—checklist Produced in association with 4 Pump Court While the issues which need to be addressed in a Response will depend on the specific facts/circumstances of the dispute, this Checklist provides a starting point for a responding party drafting its Response in an adjudication, setting out key issues to consider and linking to guidance on each. See also Practice Note: Adjudication—the Response for guidance on the Response, including practical tips for drafting it, and Checklist: Key issues to consider on receipt of a Notice of Adjudication. Initial considerations • Ascertain any requirements in relation to the Response, including the deadline for its service and any stipulations as to its form and/or contents, for example: ◦ are there any express terms regarding the Response in the parties’ contract or the applicable adjudication rules? ◦ has the adjudicator issued directions regarding the Response (these may override any contractual requirements)? ◦ as for the timing of the Response—there is no statutory time limit for serving...
Judicial review—key preliminary considerations—checklist This Checklist identifies some of the key preliminary issues to be considered before bringing a claim for judicial review in the Administrative Court, with links to further guidance on each of the issues raised. Action / issue Further guidance Do you have grounds for bringing a claim for judicial review? Judicial review—what it is and when it can be used—On what grounds may a claim be brought?Grounds of judicial review—illegalityIllegality in general: Atkin’s Court Forms (1) [14]Grounds of judicial review—unreasonablenessGrounds of judicial review—procedural improprietyProcedural fairness: in general: Atkin’s Court Forms (1) [26]Natural justice and fairness: Atkin’s Court Forms (1) [29]The right to a fair hearing: Atkin’s Court Forms (1) [38]Grounds of judicial review—breach of legitimate expectationLegitimate expectations: Atkin’s Court Forms (1) [28] Do you have locus standi to bring a judicial review claim? Judicial review—what it is and when it can be used—Who can bring a claim?The parties on an application for judicial review: claimant: Atkin’s Court Forms (1) [43] Is the proposed defendant...
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Principles of natural justiceIf an adjudicator breaches the rules of natural justice during the adjudication then the decision may be a nullity if the breach is serious.There are three well-known facets to the principle of natural justice:•no one should be a judge in their own cause•a party should be informed of the allegations against it and be given an opportunity to answer those allegations•a party is entitled to have its case heard by an unbiased and impartial tribunalIn practice, a dispute concerning the first of these three facets of natural justice type is extremely unlikely to arise in a construction adjudication. If there were any sign that an adjudicator had to decide on the propriety of their own conduct, the adjudicator would most likely resign. For information on an adjudicator's resignation, see Practice Note: Resignation by the adjudicator.The courts have given guidance as to what is required for a breach of natural justice on a number of occasions. The key Court of Appeal cases are Carillion Construction v Devonport Royal...
Ireland—Contract interpretation—implied terms This Practice Note provides an overview of the distinction between express and implied terms and outlines the manner in which terms may be implied into a contract. In addition, this Practice Note provides guidance on the common law and statutory rules affecting implied terms in a consumer law, employment law, and landlord and tenant law context. This Practice Note provides an overview of the distinction between express and implied terms and outlines the manner in which terms may be implied into a contract. In addition, this Practice Note provides guidance on the common law and statutory rules affecting implied terms in a consumer law, employment law, and landlord and tenant law context. For more detailed information on contract law in Ireland, see Practice Notes: • Ireland—Contract law essentials • Ireland—The relationship between Irish and English contract law • Ireland—Contracts—formation and interpretation • Ireland—Exclusion and limitation of liability • Ireland—Contract—breach and remedies See also: Ireland—Initial contract considerations—checklist. This Checklist provides guidance to drafters of contracts and their clients...
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Advice to clients—what is adjudication? What is adjudication? You have asked us to summarise what adjudication is and how the adjudication process typically runs, in light of [[your proposal to enter into a construction contract with] [insert name of the counterparty] OR [in anticipation of adjudication proceedings between] you and [insert name of the counterparty]]. Adjudication is a procedure designed to enable parties to resolve disputes relatively quickly and inexpensively. Under the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996), parties to construction contracts have the right to commence adjudication at any time. The parties refer their dispute to the adjudicator, who is an impartial decision-maker. The adjudicator is usually a construction industry professional (eg a quantity surveyor or engineer), or a lawyer with construction experience. They will consider arguments from both parties, and may also use their own initiative and experience, before making a decision on how the dispute should be resolved. The party that refers its claim to adjudication is usually called the ‘Referring Party’, and...
Ireland—Grievance policy and procedure (short form) This Precedent is a short-form, basic pro forma grievance policy and procedure for an employer to include in a staff handbook. The procedure complies with the requirements of the Code of Practice on Grievance and Disciplinary Procedures and includes information on the right to be accompanied and overlapping grievance and disciplinary matters. The contract of employment must include express terms outlining the grievance and disciplinary procedures that apply to the employment. The Code of Practice on Grievance and Disciplinary Procedures provides that grievance and disciplinary procedures should be in writing and in a form and language that can be easily understood. This grievance procedure is intended to be such a document and should be provided to all employees at the commencement of their employment. Good practice requires a number of stages in grievance handling. Procedures should be reviewed and updated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good practice generally For...
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Is a member of an unincorporated association entitled to seek a declaration from the court as to the construction of the rules of the association and if so would the defending party be another member or committee member advocating a different construction? An unincorporated association: • is an organisation formed when two or more persons (the members) carry on activities together for a common purpose • does not operate for the purpose of generating profit • is not a separate legal entity from its members and officers, which means that the officers and members are personally liable for the debts and obligations of the association, and • may not enter into contracts, own assets, sue or be sued in its own name The members agree how the unincorporated association is to be governed and run by creating a set of association rules, functioning in a similar way to a company’s articles of association. The relationship between members is, therefore, contractual and based on the provisions of the rules...
An adjudicator has the power to ‘take the initiative in ascertaining the facts and the law’. What does this mean, and are there any limits on the power? In terms of section 108(2)(f) of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996), parties to construction contracts must provide for the adjudicator to have the power to take the initiative in ascertaining the facts and the law. If they do not, the parties’ adjudication rules are replaced with those in the Scheme for Construction Contracts (the Scheme), which does include this provision. The power to take the initiative gives the adjudicator the discretion to take a ‘proactive’ approach. This is different from the position of a judge, whose role is generally one of a ‘referee’. In Macob v Morrison the court explained that the adjudicator could, on the basis of this power, ‘conduct an entirely inquisitorial process, or…invite representations from the parties’. It said that Parliament, in drafting HGCRA 1996, envisioned that adjudications would not...
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This week's edition of Arbitration weekly highlights includes: coverage of arbitration-related decisions from England, Singapore, Netherlands and the US; and updates from ICC, SCC Arbitration Institute, Swiss Arbitration Centre, and HKIAC.
This week's edition of Property Disputes weekly highlights includes an analysis of a case where the Technology and Construction Court clarified the limits of recoverable loss claims for damages under the Defective Premises Act 1972, an Upper Tribunal decision overturning a remediation order citing procedural irregularities, a Court of Appeal decision on whether secured debts incurred prior to a debt moratorium are excluded, and a High Court decision dismissing a beneficial interest claim in a civil recording and possession claim under the Proceeds of Crime Act 2002.
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