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A Clearer Perspective on a Novel Legal Beast: Some Implications of Aspect v Higgins

Paper number

Andrew Bartlett QC and Isabel Hitching

April 2016

A paper presented to a joint meeting of the Society of Construction Law and the Technology and Construction Bar Association in London on 1st December 2015.

How is a balance to be struck between the need for cash flow and the protection of parties' rights to a proper determination of disputes? Parliament tried to achieve a balance in the Housing Grants Construction and Regeneration Act 1996 by the creation of a 'novel and unusual legal beast': adjudication. This is often thought of as a slimmed down system of arbitration, but its true nature is different - it is a system for interim relief. It needs clarity on a number of fundamental features, such as: how does a paying party get a final determination of the dispute and, if the final determination is in its favour, how does it get its money back? The Act does not say and the Supreme Court in Aspect v Higgins improvised an answer using concepts of implied terms and restitution.

Summary - The background: the need for a balance between cash flow and determination of claims - The HGCRA: an overview of the adjudication provisions - Adjudication: 'a novel and unusual legal beast' - Unaddressed questions - The courts' answers prior to Aspect v Higgins - Aspect v Higgins: the parties' positions - The first instance decision - The Court of Appeal decision - The Supreme Court decision - Some legal conundrums and practical concerns - Lessons to learn - A clearer perspective on the novel legal beast.

The authors:Andrew Bartlett QC practises as an international and domestic arbitrator and Isabel Hitching as a barrister at Crown Office Chambers, London.

Text: 15 pages