The use of CFAs and ATE insurance in adjudication enforcement proceedings
Whilst Conditional Fee Agreements and After The Event insurance are permissible in proceedings seeking the summary enforcement of an adjudicator’s decision, the ability to recover any uplift plus the insurance premium has been put in doubt by the decision in Redwing Construction Ltd v Charles Wishart.
Obligations to proceed regularly and diligently
The case of Leander Construction Ltd v Mulalley and Co Ltd confirms that the courts are reluctant to impose any implied obligation on a subcontractor to proceed regularly and diligently with its works. If interim deadlines are required to be met, the contract must provide for those milestones.
Without prejudice material in adjudication proceedings
Parties should think carefully before including without prejudice material in adjudication submissions. If, following the inclusion of such material and on an objective appraisal, there is a legitimate fear that the adjudicator might not have been impartial the decision will be unenforceable.