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Protocoligorically Correct? Recovering adjudication costs under the Pre-Action Protocol

Paper number

Rachel Gwilliam

April 2013

A paper based on the highly commended entry in the Hudson Prize essay competition 2012

When parties go through an adjudication, how should (or can) their own costs be allocated? Rachel Gwilliam discusses the pre-2011 costs position for adjudications and its caselaw, as well as the new restrictions on costs provisions in section 108A of the Housing Grants, Construction and Regeneration Act 1996, which arrived as part of the revision of the Act in 2009. She argues that adjudication should have a regime on costs like that in the Arbitration Act 1996. In its absence, but in the context of the Civil Procedure Rules, the Pre-Action Protocol which applies to TCC cases and the costs budget pilot scheme, parties should be able to argue that costs incurred in a pre-litigation adjudication can be recovered in court. She discusses the caselaw on recovery of costs incurred before the issue of court proceedings and argues that this should routinely apply to an adjudication, provided that the adjudication genuinely concerns issues or material later relevant in court and that judges properly manage claims for adjudication costs.

Introduction -Statutory changes in 2009 - Fairness of the present position - Adjudication as a contractual first step - Recovering adjudication costs in later litigation - Recovering adjudication costs - Conclusions.

The author: Rachel Gwilliam LLB, PGCert in Construction Adjudication is a Senior Associate at Morgan Cole LLP, solicitors.

Text 15 pages.