Key Adjudication Cases of 2021

Key Adjudication Cases of 2021

Construction Adjudication Case Law

Key Cases of 2021

Construction&Engineering

Contents Case 1 : Contractual requirement to adjudicate not a fetter on the statutory right........ The Fraserburgh Harbour Commissioners v McLaughlin & Harvey Ltd [2021] CSIH 58 (6 October 2021) Case 2: Jurisdiction overlapping with substantive issues........................................................ Ex Novo Ltd v MPS Housing Ltd [2020] EWHC 3804 (TCC) (17 December 2020 HHJ Eyre QC) Case 3: Jurisdiction – Excess of and failure to exhaust – reservation of position..... ... .... Hochtief Solutions AG and others v Maspero Elevatori S.p.A. [2021] CSIH 19 (15 February 2021) (Lord President, Lord Menzies, Lord Woolman) Case 4: Jurisdiction – Adjudicator’s powers under NEC3 Option W1.3(5) – Waiver following decision....................................................................................................................... Croda Europe Ltd v Optimus Services Ltd [2021] EWHC 332 (TCC) (19 February 2021) HHJ Roger ter Haar QC Case 5: Jurisdiction – dispute arising under separate contracts ..... ....................................... Delta Fabrication & Glazing Ltd v Watkins Jones & Son Ltd [2021] EWHC 1034 (TCC) HHJ Sarah Watson

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Case 6: Jurisdiction – timing of service of adjudication notice.............................................. C Spencer Ltd v MW Tech Projects UK Ltd [2021] EWHC 1284 (TCC) Waksman J

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Case 7: Injunction to restrain adjudication.................................................................................... Marbank Construction Ltd v G&D Brickwork Contractors Ltd [2021] EWHC 1985 (TCC) 28 June 2021 O’Farrell J Case 8: Right to Adjudicate – whether collateral warranty is construction contract.... Toppan Holdings Ltd and Abbey Health Care (Mill Hill) Ltd v Simply Construct (UK) LLP [2021] EWHC 2110 (TCC) 27 July 2021 Martin Bowdery QC Case 9: Set off – failure to consider defence – validity of payment notice – severance. Downs Road Developments LLP v Laxmanbhai Construction (UK) Ltd [2021] EWHC 2441 (TCC) 7 September 2021 (HHJ Eyre QC) Case 10: Dispute – meaning – sum due on three payment application was a single dispute............................................................................................................................................... Quadro Service Ltd v Creagh Concrete Products Ltd [2021] EWHC 2589 (Ch) 19 Aug 2021 (HHJ Sarah Watson QC)

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Case 1: The Fraserburgh Harbour Commissioners v McLaughlin & Harvey Ltd [2021] CSIH 58 (6 October 2021) extend Fraserburgh harbour. They alleged defects in the works and commenced proceedings in court (because of possible limitation issues – “prescription”) claiming over £7m in damages. Pursuer engaged Defender to The contract was NEC3 2005 with 2006 amendments Option W2.1(1) contains a “cascade of dispute resolution”. Clause W2.4(1) reads: “W2.4 (1) A Party does not refer any dispute under or in connection with this contract to the tribunal unless it has first been decided by the Adjudicator in accordance with this contract.” Was clause W2.4 a procedural bar to the bringing of proceedings in court not previously been referred to adjudication followed by a notice of dissatisfaction under W2.4(2)?

given although the had not been argued. Lady Wolffe cited the finding of Edward-Stuart J in Anglian [2] that a provision in identical terms was not a fetter on the “valuable” right to adjudicate “at any time” (i.e. at a time of his choosing).

In a reclaiming motion by the Pursuer, the CSIH held:

The contract terms did not prevent the Pursuer from raising a court action. Raising the court action was not a breach of the term. The defender was entitled to enforce the ADR requirement and insist that the dispute was first referred to adjudication. The court would enforce that agreement and would not enter upon the merits of the dispute unless and until the ADR failed to resolve it. Otherwise the court’s competence to entertain the action was not affected. It was in fact competent, and practical (to prevent prescription) but could “not be pressed to a conclusion at present”. The arbitration might fail or court support needed. The correct course was to sist (stay) the action noting it was now the defenders not the pursuers who were objecting to the action continuing. If the effect of English case law was that adjudication was a prerequisite to commencing an action in court, their Lordships disagreed and found that the failure to adjudicate only prevented the court from reaching a final determination in the interim. Comment It appears there may be a divergence here between English and Scottish case law to this extent: that an action may be entertained before adjudication though not allowed to proceed to final determination until adjudication, if insisted upon, has taken place. The Scottish approach seems perfectly sensible. It has since been followed in a later case [3] by Lord Tyre.

At first instance{1} Lady Wolffe decided:

Meaning and effect of clause W2.4 was clear. Parties had agreed to resolve disputes in a specified way, with the merits to be finally determined by arbitration. The clause was not a fetter on the basic statutory right to refer a dispute to adjudication “at any time” in section 108 of the Act. The court accepted the provision operated as a procedural bar on the right to litigate or arbitrate before there had been an adjudication and a notice of dissatisfaction

[1] (2021] CSOH 8 (26 January 2021) [2] Anglian Water Services Ltd v Laing O’Rourke Utilities Ltd [2010] EWHC 1529 (TCC) [3] Greater Glasgow Health Board vs Multiplex Construction Europe Ltd and others [2021] CSOH 115 (5 Nov 2021) 3

Case 2: Ex Novo Ltd v MPS Housing Ltd [2020] EWHC 3804 (TCC) (17 December 2020) HHJ Eyre QC

There may be an overlap between the two—such as where it was necessary to decide whether there was one contract which had been varied, or a series of contracts. In such a case, the adjudicator’s decision on the preliminary matter may be binding. But not always.

The determination was only made within jurisdiction (and therefore binding) if:

It is well established that:

(1) parties may, in each adjudication, and absent agreement, refer only a single dispute arising under their contract to the adjudicator. (2) it is "broadly uncontroversial” that an adjudicator does not have jurisdiction to decide his/her own jurisdiction unless the parties have effectively agreed or permitted it. There is an exception to the usual position on ruling on own jurisdiction: where there is an ‘overlap’ between the substantive dispute and the matter of jurisdiction and the former is integral to the latter. The question here was: was there 1 contract (later varied) or 4 separate contracts. Adjudicator found 1 contract awarded ENL £300,000. MPS argued adjudicator had no jurisdiction, on the basis that the reference to adjudication concerned multiple sums due and disputes under multiple contracts.

(a) it had to be made, not just as part of the process of conducting the adjudication, but as a ‘necessary element’ in deciding the substantive dispute, once any questions of jurisdiction were resolved.

(b) it was ‘integral’ to the substantive decision.

On the facts, it had not been necessary for the adjudicator to decide the ‘multiple contracts’ point, in order to determine the substantive dispute. The real issue between the parties on that dispute was whether there was a valid payless notice from MPS, and a potential valuation matter. NB MPS had no real prospect of demonstrating there were multiple contracts. The evidence pointed to a single contract, with call offs. Accordingly, the adjudicator had jurisdiction to decide the dispute, and his decision should be enforced.

HHJ Eyre distinguished

(i) issues that are ‘as a preliminary’ to resolving the substantive dispute such as a question of jurisdiction determinations about which were not binding; (ii) issues necessary to determine the substantive dispute which are binding, even if wrong in fact or law.

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Case 3: Hochtief Solutions AG and others v Maspero Elevatori S.p.A. [2021] CSIH 19 (15 February 2021) (Lord President, Lord Menzies, Lord Woolman)

"construction operations”. But Parties chose OptionW1 providing for adjudication even though the Act did not apply. Adjudication 1: The adjudicator decided the gross value due to Optimus was less than paid but that he had no power to order repayment of the excess to Croda.

On enforcement of an adjudicator’s decision Lord Clark held:

Adjudication 2: Croda asked for repayment of the overpayment and succeeded.

(i) the adjudicator had not exceeded his jurisdiction in deciding that a July agreement was a variation of the subcontract not a new contract; (ii) he had not failed to exhaust his jurisdiction: he had taken into account Maspero’s contentions before concluding that certain design costs were covered by a clause in the determination provision of the subcontract; (iii) Maspero in merely “hinting at a challenge” had not made an appropriate and clear reservation “at the outset” such as was required and had therefore acceded to the adjudicator’s jurisdiction. The Inner House rejected Maspero’s appeal adding that Scots law like English law required a clear and timely challenge. Case 4: Croda Europe Ltd v Optimus Services Ltd [2021] EWHC 332 (TCC) (19 February 2021) HHJ Roger ter Haar QC Under an NEC3 Professional Services Contract (PSC) Optimus agreed to provide services for the expansion of Croda’s chemical work. The Act did not apply – the agreement was not one for

Optimus refused to pay and Croda applied for summary judgment. Optimus said the adjudicator’s powers to “review and revise any action or inaction” under Option W1.3(5), did not extend to finding that the value of Optimus’s services was less than had been paid and to order repayment.

Held:

1.

No justification for such a limitation. The power under Option W1.3(5) should be construed consistently with the like power under Option W2.3(4) which was unlimited and allowed a party to refer any dispute. It would be improbable and uncommercial to construe W1.3(5) as being a closed list of powers. Adjudicator was entitled to create a negative valuation and payment; even if that were untrue, it would be a contractual interpretation open to the adjudicator and therefore not a ground to resist enforcement. Optimus had elected to treat the decision as binding and had waived its right to challenge enforcement on jurisdictional grounds, by writing to the adjudicator confirming payment of his fees and asking him to correct his decision under the ‘slip rule’, without reserving its right to raise a jurisdictional challenge.

2.

3.

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Case 5: Delta Fabrication & Glazing Ltd v Watkins Jones & Son Ltd [2021] EWHC 1034 (TCC) HHJ Sarah Watson - Jurisdiction - dispute arising under separate contracts It was common ground that Delta entered into two subcontracts with Watkin Jones: one for cladding and one for roofing works. Each subcontract had its own order number and detailed documentation. From February 2020, payment under the two subcontracts was administered together. Subsequently, a final account sum was agreed for both subcontracts together. A dispute arose over the final account which Delta referred to adjudication. Watkin Jones challenged the adjudicator’s jurisdiction contending that as the dispute arose under two separate contracts it could not be referred to adjudication under the Act. They did not give the adjudicator power to decide his own jurisdiction but they put forward reasons why he should resign. The adjudicator made a non-binding decision and proceeded with the adjudication. He was persuaded that by reason of there being an agreement to a single final account figure for both subcontracts, the parties had agreed to treat them as one.

(1) There was an agreement to be implied from conduct to vary or amalgamate the contracts.

Held: The parties’ conduct was inconsistent with amalgamation. Payment applications and the final account showed the sums due under each of the two subcontracts albeit totalled together. (2) That it was possible for parties to agree to treat two separate contracts as one for the purposes of the Act and therefore

adjudication, where, as here, they had combined payments claimed and due in applications and the final account.

Held: the argument was without authority and where the contracts had not been amalgamated at common law they could not become a single “construction contract” under the Act.

(3) Watkins Jones was ‘estopped’ from denying the subcontracts should be treated as one.

Held: The elements of estoppel were not present; there was no evidence of reliance by Delta or of detriment to them. Watkins Jones had not only a real, but a strong prospect of success at trial. Application for summary judgment refused.

Delta’s application to enforce the award in its favour, rested on three alternative arguments:

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Case 6: C Spencer Ltd v MW Tech Projects UK Ltd [2021] EWHC 1284 (TCC) Waksman J – Jurisdiction – timing of service of adjudication notice

"Where an adjudicator is not appointed under 4.1 or 4.2, the party issuing the notice may request ICHEME to nominate an adjudicator. Such request shall be in writing..." Held: nothing in the words of clause 3.1 or 4.3 required the sequential issuing of the two types of document. There was no previous authority on these provisions. Cases about service of notices under the Scheme were unhelpful in construing this sub-contract. The proof of the pudding was in the eating. On receipt of the email, MW acted immediately. The 4th edition of Coulson on Adjudication (2018), 18.16 recommended that both notices were sent at the same time. That militated against any idea of unfairness or impracticality where notices were sent simultaneously. MW claimed that being copied in on an email addressed to ICHEME could not amount to the "giving of notice" required by cl. 3.1. As a matter of principle the court could not see why not. Nothing in cl. 3.1 required formal "service" or stipulated any mode of giving notice, rather it provided for the simple giving of notice. Defence 2 : This was a hybrid contract: some works were governed by the Act, some not. MW argued that the adjudicator should have taken into account the value of its counterclaim said to be worth £4.3m, though they also said he was not entitled to value it as it arose from the excluded operations. This approach, described by the judge as “look but don’t touch”, appeared to be tactical. Adjudicator had included a ‘nil’ value in his decision, thus taking the counterclaim out of the adjudication altogether. He was not valuing something he had no jurisdiction to deal with. In any event as there was no payless notice, the adjudicator was not obliged to take the counterclaim into account.

CSL applied for summary judgment to enforce an award in its favour for £3,397,029.03 dated 14 January 2021.

Three defences were raised two of which are worth mentioning.

Defence 1: Under the Scheme, and s 108(2) of the Act, it has been held a notice of adjudication has to be given before the referring party applies for the appointment of an adjudicator. Here CSL sent an email to ICHEME (the ANB), enclosing a copy of the notice of adjudication and at the same time copied the email to the responding party, MW. MW objected that the notice had not been served before the application to the ANB to appoint the adjudicator and was ineffective. The adjudicator made a non-binding decision that the notice had been effectively given and he had jurisdiction.

The sub-contract was based on the IChemE Grey Book and Cl.3.1 provided:

"The party wishing to refer to arbitration any dispute arising or in connection with a contract may give a notice at any time to that effect to the other party".

Clause 4.3 provided:

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Case 7: Marbank Construction Ltd v G&D Brickwork Contractors Ltd [2021] EWHC 1985 (TCC) 28 June 2021 O’Farrell J – injunction to restrain adjudication In the exercise of its discretion a court may grant an injunction to restrain a party from pursuing an adjudication pursuant to s37 of the Senior Courts Act 1981 applying American Cyanamid principles: court could only interfere in limited circumstances.

Conduct in commencing three sets of adjudication proceedings were commonplace Taken together these features did not amount to unreasonable or oppressive behaviour. The court noted that unlike Mentmore Towers Ltd v Packman Lucas Ltd[4] the adjudications had not been enforced and G&D was not in breach of any court order. However and significantly, if the subject matter of the adjudications were to trespass on a court decision, that could prevent the adjudicator from having jurisdiction and it would follow, the court from enforcing any decision. Finally following the reasoning of Lord Briggs in Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd[5] the court was reluctant to interfere in adjudication. Jurisdiction was a matter that could and should be dealt with at the enforcement stage.

Background

G&D a sub-contractor had taken CC proceedings for sums claimed owing over 3 construction projects. The court proceedings were struck out. This lead G&D to refer the three disputes to adjudication with further ones intimated. Marbank argued the adjudications were unreasonable and oppressive. They raised the same or substantially the same issues as the CC proceedings which had been struck out. It intended to pursue Part 8 proceedings to deal with these jurisdictional points and needed an injunction to give it time to do so.

In dismissing the application for an injunction, O’Farrell J noted:

G&D had a right to commence adjudication proceedings at any time. It was not for Marbank to dictate when that might be.

Irrecoverable costs were simply a feature of the process.

[4] [2010] EWHC 457 (TCC) [5] [2020] UKSC 25

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Case 8: Toppan Holdings Ltd and Abbey Health Care (Mill Hill) Ltd v Simply Construct (UK) LLP [2021] EWHC 2110 (TCC) 27 July 2021 Martin Bowdery QC – Right to Adjudicate – whether collateral warranty is construction contract Sapphire contracted with Simply to design and build a residential care home in 2015. The building contract provided for a collateral warranty to a future tenant. Sapphire novated the building contract to Toppan who granted a lease to Abbey who then operated the care home. Simply executed a collateral warranty in favour of Abbey. In 2019 significant fire safety defects were discovered and subsequently rectified at considerable expense. Toppan started an adjudication against Simply to claim remedial costs under the novated building contract and Abbey started an adjudication to claim damages for loss of income against Simply pursuant to the Act on the basis that the collateral warranty was a ‘construction contract’ i.e. one for “construction operations”. The same adjudicator was appointed in each case and he made awards in favour of Toppan and Abbey which they sough to enforce.

(b) in carrying out and completing the Works the Contractor has exercised and will continue to exercise all the reasonable skill care and diligence to be expected of a, properly qualified competent and experienced contractor experienced in carrying out and completing works of a similar nature value complexity and timescale to the Works; in carrying out and completing any design for the Works the Contractor has exercised and will continue to exercise all the reasonable skill care and diligence to be expected of a prudent, experienced competent and properly qualified architect or as the case may be other appropriate competent and qualified professional designer experienced in carrying out and completing the design for works of a similar nature value complexity and timescale to the Works.” (c) In the Abbey adjudication, Simply maintained a challenge against the adjudicator’s jurisdiction: they said the collateral warranty was not a construction contract and there was no right to adjudicate the dispute arising under it.

In Parkwood Leisure[6], Akenhead J said:

“(a) The fact that the construction contract (if it is one) is retrospective in effect is not a bar to it being a construction contract. It is common for contracts to be finalised after the works have started and to be retrospective in effect back to the date of or even before commencement. If that is what the effect of the parties' agreement is, then that cannot prevent it from being a construction contract for the carrying out of construction operations. Put another way, a construction contract does not have to be wholly or even partly prospective.

The warranty was a bespoke form in which Simply warranted as follows:

“ (a) the Contractor has performed and will continue to perform diligently its obligations under the Contract;

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[6] Parkwood Leisure v Laing O’Rourke [2013] B.L.R. 589

Comment

(b) One must be careful about adopting a peculiarly syntactical analysis of what words mean in this statute when it is clear that Parliament intended a wide definition. An agreement "for... the carrying out of construction operations" is a broad expression and one should be able, almost invariably at least, to determine from the contract in question whether it fits within those words, without what could be a straight-jacketed judicial interpretation. (c) Usually and possibly invariably, where one party to a contract agrees to carry out and complete construction operations, it will be an agreement “for the carrying out of construction operations”.

Amongst other things care should be taken when drafting the terms of a warranty to give effect to an intention to provide for (or not to provide for) a right of adjudication. If the intention is to provide for such a right this is best done by introducing an express adjudication provision (which will result in a contractual right even if there not a statutory right). If it is intended there be no such right, then the obligation being warranted needs to be drafted so as not to require the warrantor to carry out any constructions operations (essentially any work). But in addition the time at which the warranty is given (before or during or after completion of works) is a factor which needs to be taken into account as likely to influence the construction of the warranty.

The warranty in Parkwood includes the verbs “warrants, acknowledges and undertakes”.

The Abbey warranty did not use “acknowledges and undertakes”.

It was given 4 years after practical completion of the original works, 3 years after the settlement agreement and 8 months after the remedial works had been carried out and at a time when no further work was in prospect. This was a strong pointer against it being an agreement for the “carrying out of construction operations” within section 104 of the Act.

Rather it was a warranty as to a state of affairs past or future akin to a manufacturer’s warranty.

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Case

9:

Downs

Road

He decided the issue over the capping beam was not part of the dispute i.e. not part of the valuation of payment application 34 and outside his jurisdiction. In Court, Employer applied under Part 8 CPR for declarations including one that the Adjudicator’s decision was unenforceable for failure to address the capping beam claim. Contractor sought declarations that Payment Notices 34 and 34a were invalid and that the Decision was valid and enforceable. Employer conceded Payment Notice 34a was out of time and invalid but relied Payment Notice 34 as valid but said the Decision was not binding because of the failure to address its capping beam cross- claim. They contended that whilst Decision was not binding in respect of the extent of its set off, it was binding as to value of Payment Notice 34. In the result the Contractor was no longer able to rely on Payment Application 34 as a payment notice and was only entitled to the amount identified by the adjudicator (which it had paid).

Developments v Laxmanbhai Construction (UK) Ltd [2021] EWHC 2441 (TCC) 7 September 2021 (HHJ Eyre QC) - Set off – failure to consider defence – validity of payment notice – severance LLP This was a complex case. Claimant Employer engaged defendant Contractor to build 79 residential units in London on a JCT DB 2011 with amendments for a contract sum of £27.39m. Employer served a “holding” notice relied on as a valid Payment Notice for £0.97p (i.e. a nominal £1 less 3% retention) within the requisite period (Payment Notice 34). It later served a detailed Payment Notice (34a) outside the requisite period. This process had been employed in previous payment applications 31-33. Contractor’s interim payment 34 had been for £1,888,660.70 whereas Payment Notice 34a was for £657,218.50 which was paid. Instead of commencing a ‘smash and grab’ adjudication based on its payment application Contractor commenced a true value adjudication over application 34. It wanted to settle the way in which payment applications were dealt with and avoid a further adjudication by the Employer for a true value. In the adjudication Employer relied on its Payment Notice 34. It also raised a counterclaim for a defective capping beam claiming loss of future rental of £149, 692.

Contractor argued that Payment Notice 34 was invalid, and Decision, enforceable in its entirety.

Alternatively, if not enforceable in full, it was not enforceable at all with the consequence that the notified sum was the amount set out in Payment Application 34 (see s.111 (1) of the Act); and Employer was obliged to pay that sum even if the Decision was enforceable (Employer's redress after payment was to seek to recover any overpayment).

Adjudicator valued application No 34 at £103,826.98.

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Judgment

Payment Notice 34 did not provide ‘an agenda for adjudication’. It set out no basis for the gross valuation increase of £1. Contrast its Payment Notice 34a which put forward a markedly larger figure and was accompanied by detailed calculations. Payment Notice No 34 did not set out the amount which Employer actually considered to be due. It was not necessary to show the Employer was acting in bad faith but equally it could not be said the notice stated the sum that Employer genuinely considered to be due. Payment Notice 34 was invalid and ineffective. The adjudicator took too narrow a view of his jurisdiction. The question of the capping beam claim was part of the payment dispute. Had the adjudicator considered the capping beam claim and concluded that the defence did not operate to reduce the amount due, his decision would have been unimpeachable (whether founded on either the interpretation of the Contract or on arguments as to the merits or quantum of the capping beam claim). This was a “material” breach of the rules of natural justice. Apart from anything else it was worth more in claimed value that the amount actually awarded. The Decision could be safely enforced as to the value of the Interim Payment Application 34. The starting point was that whenever it was safe to do so it would and could sever the good from the bad. Adjudicator was not asked to make a series of separate decisions. He reached a single decision with findings and conclusions in support.

It would be artificial and inappropriate to stop at any particular point in a chain of reasoning. Nothing remaining could be safely enforced. The question whether Employer remained liable to pay the notified sum on Payment Application 34 and then seek return of any overpayment, was “academic” (for the purposes of the court proceedings) and not further addressed. Neither party had claimed any relief based on the invalidity of Payment Notice 34. In addition matters had moved on to payment cycle 35 which would be a proper matter for any further dispute.

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Case 10: Quadro Service Ltd v Creagh Concrete Products Ltd [2021] EWHC 2589 (Ch) 19 Aug 2021 (HHJ Sarah Watson QC – Dispute – meaning – sum due on three payment application was a single dispute Section 108(1) of the Act gives a right to refer “a dispute” to adjudication at any time. The Scheme at paragraph 1(1) refers to “any dispute” (singular) and is construed accordingly. Thus, an adjudicator does not have jurisdiction to determine more than one dispute in any single adjudication, unless the parties otherwise agree. Sometimes, because of complexity, the issues referred to adjudication form only part of a larger dispute that has arisen say upon a payment application. They were nevertheless held to be part of a single dispute. They were no more than aspects of a dispute between the parties as to the proper amount of a payment certificate. You have to look at the facts of the case and use common sense. Here, rather than being obviously aspects of a single payment application, the dispute concerned three separate payment applications. The adjudicator decided it was a single dispute and awarded the claimant £40,000. On enforcement and applying the above principles, the court looked at the referral, the surrounding facts in and decided that the question ‘What was due under three payment applications?’ comprised a single dispute.

The three applications were linked as they were cumulative. What was being claimed was the total sum due under the contract. Each application could be a sub-issue that was part of a wider dispute as to the total sum due to the claimant under the contract as in the case of a claim for variations If D was right, it would mean parties incurring the very significant cost and inconvenience of three adjudications to recover “a single balance claimed under a single contract.”

Comment

It appears that the defining factor was that the referring party was claiming the total sum due under the contract at the date of the referral to adjudication, which was a single sum albeit the product of three applications. It also appears to have been significant that the applications were cumulative and therefore pointing to a total sum due. The decision cannot be faulted on the facts, though it does seem to be edging towards the boundary of what constitutes a single dispute and ‘bundling up’ separate payment applications, at least where they are not cumulative, may not achieve the same outcome.

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Legislation

The Act means the Housing Grants, Construction and Regeneration Act 1996 as amended by the Local Democracy, Economic Development and Construction Act 2009 Pt 8. The Scheme means the Scheme for Construction Contracts (England & Wales) Regulations 1998 (the ‘Principal Regulations’) as amended by the Scheme for Construction Contracts (England & Wales) (Amendment) (England) Regulations 2011 for contracts entered into after 1 October 2011. Northern Ireland has its own scheme: the Scheme for Construction Contracts in Northern Ireland 1999 as amended by the Scheme for Construction Contracts in Northern Ireland (Amendment) Regulations (Northern Ireland) 2012. Scotland has its own Scheme: Scheme for Construction Contracts (Scotland) Amendment Regulations 2011 (SI 2011/371), applicable to contracts made on or after 1 November 2011. The new Regulations apply only to contracts for work in Scotland entered into on or after this date. There are new separate regulations for Wales, applicable to contracts for construction operations in Wales entered into on or after 1 October 2011.

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