Andrew Kearney successful in TCC in Dawnus Construction Holdings Ltd v Amey LG Ltd [2017]

Andrew Kearney successfully represented Amey in the recent case of Dawnus Construction Holdings Ltd v Amey LG Ltd [2017] EWHC B13 (TCC). 

This was a fascinating TCC case about whether two construction adjudication decisions Andrew Kearneyhad become binding for all time, or remained capable of challenge in Court. The sub contract between A and D contained an adjudication clause (Appendix 12), which did not contain a time bar provision.  The main contract between A and the local authority contained a NEC3 style different adjudication clause, and a time bar provision.  The sub contract expressly incorporated the terms of the main contract, save where they conflicted.  A successfully argued that the time bar provision in clause 63.2 of the main contract was not part of the adjudication provisions at all, and so was not in conflict with Appendix 12 of the sub contract.  As a result, the time bar was incorporated, and D was too late to challenge the two decisions.  This case has potentially wide ramifications for any contract which contains an adjudication provision which does not comply with s108 HGCR Act 1996, and also contains a time bar.  It is possible that the statutory Scheme will apply in place of the whole of the non compliant adjudication provisions, but the time bar will not be affected and will still apply, even to a decision made by an Adjudicator under the Scheme.

Ben Quiney QC appeared for Dawnus.

To view judgment – http://www.bailii.org/ew/cases/EWHC/TCC/2017/B13.html

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