Note: STATUTORY ADJUDICATOR OR CONTRACTUAL CERTIFIER: POSTSCRIPT

• Author: I N Duncan WALLACE QC MA (Oxford), Barrister-at-Law (Middle Temple), Queen’s Counsel.
• Published date: 01 December 2005
• Date: 01 December 2005
• Citation: (2005) 17 SAcLJ 908

This Postscript and its preceding article support the traditional policy of “temporary finality” (ie, subject to definitive arbitration or litigation) accorded to contractual certifiers’ decisions in interim payment disputes between owners and contractors as against a policy of immediate enforcement by summary judgment of external adjudicators’ decisions overriding or disregarding those decisions of contractual architects/engineers which support owners’ defences by invoking the provisions of legislation based on the English Housing Grants, Construction and Regeneration Act 1996. “Temporary finality” of contractual certifiers’ decision is traditionally accorded by UK-style building contract standard forms, including the SIA Conditions of Contract 1980.

1 In the September 2004 issue of your Journal (“Statutory Adjudicator or Contractual Certifier”)1 I endeavoured to explain why (for what I believed to be the best long-term industrial and consumer interests of the country, as well as important considerations of individual justice) it would be unwise for the Singapore authorities to go down the route chosen by many Commonwealth jurisdictions, ie, to follow closely the UK’s so-called 1996 Housing Grant legislation2 and its scheme for interim on-account payment, backed by those English judicial precedents3 which, in my view, wrongly as well as unwisely, have treated as automatically enforceable by summary judgment even admittedly erroneous decisions of the externally imposed (though unaccredited) adjudicators under that Act. In my opinion this goes much too far in conferring immunity on adjudicators’ decisions in the anxiety to supplant the traditional administrative and binding certifying role of a construction owner’s professional architect/engineer (“A/E”) in interim payment disputes as expressed in the provisions of the current Singapore Institute of Architects (“SIA”) standard form of construction contract.

2 The essential basis of my criticism of this latest English legislation, as backed by our own domestic judicial precedents, was not any principled objection to the concept of external adjudication as such, but rather the unfair severity and “ambush” propensities of the English Act’s one-sided and exclusionary time limits (expressly applying only to defending owners seeking to set up abatement defences or equitable cross-claims by way of set-off against sums claimed). On analysis, my criticism was still further limited to the comparatively rare (though now in practice increasingly common) situation where an adjudication decision could already be seen at the enforcement stage to have been arrived at wrongly (ie, in practical terms, as a result of the adjudicator either misinterpreting the substantive provisions of the construction contract itself, or else as a result of the Act’s own exclusionary requirements under s 111 in those cases where defendants have failed or been unable to comply with the time limits for a withholding notice under that section).

3 There are in fact three...