• Clause 2 expands the definition of ‘construction contract’ to include oral contracts. Adjudication provisions will, however, still need to be in writing to be effective.
  • Clause 4 contains provisions dealing with the costs of adjudication. The parties’ own costs will be distinguished from the fees and expenses of the adjudicator. Parties will only be able to agree the allocation of costs after the appointment of the adjudicator, thereby eliminating the ability of a stronger party contractually to oblige a weaker party to bear all of the costs, regardless of the outcome. Even where an agreement has been made after the appointment of the adjudicator, the adjudicator will have the power to decide that any or all of the cost that the parties have agreed to allocate are unreasonable. Parties to a construction contract will remain jointly and severally liable for the adjudicator’s fees and expenses so that, if one party becomes insolvent, the adjudicator will still get paid. 
  • Clause 5 renders ineffective any third party ‘interim payment decision’ term in a construction contract, ie a term which makes such a decision binding. As a result, an adjudicator will be allowed to consider payments arising in contracts containing such a term except where the parties agree to be bound by an interim payment decision after it has been made and communicated to the parties. 
  • Clause 6 addresses the issue that arises under s110(1), which stipulates that every construction contract must provide an ‘adequate mechanism’ for determining what and when payments become due under the contract. The courts have held that such a mechanism includes certification by a third party (for example, an architect or quantity surveyor) under a superior contract. New subsection (1A) changes that – it will no longer be an adequate mechanisms for these purposes to make the determination of what payments are due, and when, dependent upon work carried out in another contract or upon a third party’s decision as to whether work has been carried out in another contract. 
  • Clause 7 amends the existing provisions on notices relating to payment. s110(2) currently requires the payer to give the contractor notice of the amount the payer proposes to pay and the basis on which that sum has been calculated. Clause 7 extends these provisions to the giving of similar notices by the contractor. The notice is to be given five days after the payment in question becomes payable at the latest. 
  • Clause 8 introduces (in most cases) a requirement to pay sums specified in these notices. A new s111 – the section that has caused so many problems – will be substituted with a more general requirement on the part of the payer to pay the sum set out in a s110 notice. The sum specified in the notice can, however, be challenged or revised by giving a type of counternotice. 
  • Clause 9 amends the existing provisions relating to a contractor’s right to stop working when he has not been paid. The amendment will put it beyond doubt ‘that a contractor may stop carrying out some, and not simply all, of the work in such a case.’