Andrew Bartlett QC and Isabel Hitchings paper presented to a joint meeting of the SCL and TeCBAR: Aspect v Higgins

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.

click here for the link to the full paper on the SCL Website

Back to News


About cookies on our website

Our site uses cookies to improve your experience of certain areas of the site. You may delete and block all cookies from this site, but as a result parts of the site may not work as intended. To find out more about what cookies are, which cookies we use on this website and how to delete and block cookies, please see our privacy policy page.

Click on the button below to accept the use of cookies on this website (this will prevent the dialogue box from appearing on future visits).