Construction Contracts Act – Experience to Date Construction Contracts Conference 4 April 2019 Construction Contracts Act – Experience to Date Presented by Damien Keogh “One of Ireland’s Leading Individuals in construction law”

Introduction Adjudication – Almost 3 years on! Chairperson of Minister’s Panel Annual Report 25 July 2018 Statistical Data on Reported Cases What Factors have affected the Uptake in Adjudication? The Standard Form Contracts Facts you should know about Adjudication

Adjudication – Almost 3 years on! No cases before Courts Applications to Chairperson Minister’s Panel Year 1 – to 25 July 2017 – 1 invalid application! Year 2 – to 25 July 2018 – 11 applications – 7 completed adjudications Anecdotal Experience Year 1 & 2 – much the same! Year 3 – from 25 July 2018 to date – gathering pace!

Minister’s Panel Chairperson Annual Report Para 39 Code of Practice - CCAS Data Second Annual Report 25 July 2018 11 Applications for Appointment of Adjudicator 9 Adjudicators appointed by Chairperson 7 Adjudications completed Details of Cases Reported to CCAS

Statistical Data on Reported Cases Adjudicators – 3 QSs; 2 Barristers; 1 Solr; 1 Eng 3 Sub-C/Contractor; 2 Cont/Emp; 1 Cont/Govt 2 Interim Payment, 1 Final Payment 3 Other – Termination/Liquidation/LOI 4 Decisions; 1 Adj Resigned; 1 Adj Revoked 2 €50k-€100k; 1<€0.5m; 1 between €1m & €5m 4 within 28 days; 1 within 42 days

What factors affected Adjudication uptake? Contracts entered into after 25 July 2016 CCA Timing – Industry upward cycle Uncertainty how Adjudication operates Fear of possibility of escalating costs Adversarial perception Adjudication not tested in Courts Cultural preference for conciliation Standard Form Contracts – RIAI, Public Works Contracts

Standard Form Contracts RIAI – Cl.38(a)(i) “…the parties should enter into Conciliation…before Adjudication…” PWC – Cl.13.1.1 – ER’s Determination – referred to Project Board PWC - Cl.13.2.1 “…either party may…refer the dispute for Conciliation” PWC – Cl.13.3 – Adjudication Project Board/Conciliation Immediately Adjourned!

Facts you should know about Adjudication Broad meaning of “Construction Contracts” Only applies to “Payment Disputes” Statutory Entitlement – S.6(1) – “A party…has the right to refer…” You can exercise your right “at any time” S.6(2) You can’t exclude Adjudication right S.2(5)(b)

More Important Facts about Adjudication It’s far quicker than Conciliation It could cost less than Conciliation It will cost less than Arbitration The Adjudicator’s Decision is Enforceable by Court You can suspend contract if Adjudicator’s Decision not paid in full BUT You Need to Understand & Prepare for Adjudication

Contact Details Damien Keogh Principal Damien Keogh & Associates Solicitors Email: dkeogh@damienkeoghassociates.com Ph: +353 1 2350300 Mob: +353 85 240 8296