CPA Bulletin

38 CPA Bulletin > November 2024 www.cpa.uk.net Q&As: 2 You could refer your customer to the Model Conditions and draw their attention to clause 6 which covers servicing and inspection of the plant that had been supplied, and where the customer must give you access - at all reasonable times - so that this can be carried out. Within clause 32 - Government Regulations - the customer has to comply with all regulations which includes health and safety. The fact that you have notified your customer, as your contract is with them, requires them to ensure compliance with both clauses – 6 and 32. It may be worth reminding the customer, that if an incident were to happen as a result of the failed maintenance, as a direct result of not being able to recover the machine, then any resulting investigation - whether by the HSE or injured party - would have to be that as the plant owner, you had tried to comply with the health and safety regulations, but your attempts have been impeded and prevented through no fault of your own. This may encourage the customer to press the end-user to assist in exchanging the machine with another that was compliant with all elements of legislation. If I can be of further assistance, then please get in touch. I am hoping that you can give me some advice. We have a machine on hire under the CPA’s Model Conditions, to a customer of ours who has re-hired it to one of their customers. We were not informed of this fact, and so no written consent was given by us. We are looking to wanting to exchange that machine with another – so we can comply with Health and Safety regulations. The replacement machine would be identical to the one our customer is currently using. I had initially arranged this for a particular day, but this was cancelled by our customer late the day before, which resulted in us incurring aborted haulage charges. I am trying to arrange a new collection time, but the customer is being uncooperative. The matter is made more difficult as their customer (the end-user) is unable, or unwilling, to help resolve the matter. Our customer claims that for the collection to be carried out, all parties: us, our haulier, the customer, and the end-user need to agree a time/date, but the end-user is not forthcoming with an agreed time/date. I would welcome any help you can provide. The adjudication process is an alternative method of dispute resolution between two parties, rather than proceeding with court action. The adjudicator is an individual who acts in the role of a ‘judge’ when overseeing the dispute between two parties. Depending on the nature of the dispute, the person acting as the ‘judge’ can be, for example, a solicitor, barrister, or engineer. Similar to a court hearing, the adjudicator will preside over the hearing, and based on the evidence presented by both parties, will hand down their decision. The advantage of this process is that it can be quicker than going through the courts, and where possible, is now being encouraged by the courts, but the costs for appointing an adjudicator, and for the adjudicator’s time in dealing with the dispute can be expensive. If you do decide to proceed with the adjudication process, there are some steps you must follow. These are outlined in a document on our website at www.cpa.uk.net/legal-insurance-plant-theft/legal/adjudication and is reproduced below. The Construction Act provides that a referring party (the party wanting to initiate the adjudication process), shall give notice (in writing) to the other party/parties of its intention to refer the dispute to adjudication. The notice to the other party / parties should also include: • brief details of the nature of the dispute, • when and where the dispute arose, • the nature of the redress sought, and, • the names and addresses of the parties to the contract. The objective is to refer the dispute to the nominated Adjudicator within the 7 days of giving notice to every other party to the contract. The appointment of an adjudicator can be agreed between both parties, and if not, then the CPA can appoint someone. The CPA has a list of adjudicators which can be found on the Adjudication page within the Legal section of the CPA website, which could be referred to by both parties. However, if the adjudication process is rejected by the other party, then court action may be the only reasonable course left for you to take. If you want to discuss this further, then please get in touch. We are having an ongoing dispute with a customer. In an attempt to resolve this, a colleague has mentioned adjudication, and that it is referenced in clause 36 of the CPA’s Model Conditions. I wondered if you could provide some background information on the adjudication process.