In the last week or so there has been a very important case in the Technology and Construction Court which deals with a number of issues relating to adjudication. The importance of the case lies in the fact that the Judge (Peter Coulson) adopted a very robust approach to devices aimed at undermining adjudication.
The case is Yuanda UK Co. Ltd v WW Gear Construction Ltd. In particular the Court has declared Tolent clauses to be non-compliant with the Construction Act even though for over 10 years (following the case of the same name) it has been accepted that they are legal.Tolent clauses refer to contractual provisions that insist that a referring party in adjudication pay both parties costs plus the adjudicators fees and expenses.
Although this has been outlawed by the amendments to the Construction Act (subject to the parties agreeing such provision following a notice of adjudication) it now seems that such clauses are already illegal. As a result the Scheme for Construction Contracts will apply.