‘Turn the work around or turn it away’
Solicitor and construction-arbitration expert Bernard Gogarty (pictured) has said that a High Court judgment by Mr Justice Garrett Simons this month has highlighted the need for lawyers to be prepared to work quickly and efficiently within the strict timeline set out in the
The ruling, delivered on 1 September, saw Timber Frame Projects Limited, t/a Timber Frame Ireland, an application to enforce an adjudicator's award.
The case arose from a dispute over the construction contract for a residential timber-frame structure.
The employer terminated the contract, alleging repudiatory breach, and sought to recover the purchase price and compensation through adjudication.
The court, however, sided with the contractor on a key issue — ruling that the adjudicator lacked jurisdiction as the claim did not relate to a ‘payment’ under the contract as defined by the act, but rather common-law damages.
Solicitor Bernard Gogarty said that paragraph 66 of the judgment reiterated the requirement for speedy action.
'An unfairness'
It states: “The reason for which an adjournment had been sought had been the non-availability of the contractor/respondent’s then solicitor. With respect, this is not a compelling reason and certainly not one the refusal to act upon which would produce an unfairness. The reality is that compliance with the statutory 28-day period will require all parties and the adjudicator to work to very tight timelines.”
The ruling continues: “It is not necessary for a respondent to engage formal legal representation … to contest a claim in adjudications.
"The response may be prepared by an individual or company themselves or through an architect or other professional.
If, however, a respondent chooses to engage legal representation, then they must instruct a solicitor who has capacity to comply with the timeline. If a solicitor is unavailable to do so, then they should decline to act and should instead advise a respondent to instruct another solicitor who has capacity to take on and complete the work within time.
“It would render the 28-day period prescribed by a statute unworkable if all that a party had to do to obtain an extension of time was to say that their preferred legal representative was unavailable”.
Tight deadline
Solicitor Bernard Gogarty, who is chair of the Construction Contracts Adjudication Panel, said that the judge had put his finger on a key point for lawyers, which was the tight deadline the act set out.
“If practitioners cannot turn this work around quickly, then they must turn it away,” he told Gazette.ie this morning.